Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents. (b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary. (c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties. (d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties. (e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true. (f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 7 contracts
Sources: Incremental Revolving Credit Assumption Agreement (TransDigm Group INC), Incremental Term Loan Assumption Agreement (TransDigm Group INC), Credit Agreement (TransDigm Group INC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the date that is the later of (i) 30 days following the date of such formation or acquisition and (ii) any the earlier of the date of the required delivery of the next Compliance Certificate following such Domestic Subsidiary that was an Immaterial Subsidiary but, as of creation or acquisition and the date which is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Joinder Agreement in substantially the form set forth attached as Exhibit D J hereto (the “Joinder Agreement”)) and a Security Agreement Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith deliver a completed Perfection Certificate and simultaneously therewith or as soon as practicable thereafter (and in any event within 45 days thereafter (as may be extended at the discretion of the Administration Agent)) take such actions as may be required in accordance with the terms hereof or of the applicable Collateral Documents to grant Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (d) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes CollateralCollateral (including any Material Real Estate Assets), on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Subordination Agreement, and with respect to Material Real Estate Assets, take such actions described in paragraph (d) of this Section.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party it to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents (other than Capital Stock in Osmotica BVI, so long as Osmotica BVI is not a Loan Documents Party); provided that, in the case of voting Capital Stock of After-Acquired CFCs and Disregarded Domestic Subsidiaries, such pledge shall be limited to 65.0% of the voting Capital Stock of any first-tier After-Acquired CFC or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Disregarded Domestic Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary of its Subsidiaries that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the 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 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 (to the extent required herein or therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets any asset constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become becomes subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 90 days of such request (or such longer period as may be acceptable to the Borrower Administrative Agent) such Loan Party will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party 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 (c) of this SectionSection and delivery of flood hazard determination forms, title insurance policies (including any endorsements thereto), surveys and local counsel opinions, all at the expense of the Loan Parties.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), Borrowers shall cause one or more such Domestic Restricted Subsidiaries Subsidiary to become additional Loan Parties take all actions required by this Section 5.12 (notwithstanding that within the time periods specified herein) as if such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueSubsidiary were then formed or acquired.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 6 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals PLC)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower each Loan Party and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (iiexcept for Permitted J/Vs) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party by executing the Joinder Agreement set forth as Exhibit F hereto (the “Joinder Agreement”) within 20 five (5) Business Days of the creation or acquisition thereof (or such later date as longer period of time agreed to in writing by the Administrative Agent in its sole and absolute discretion) by executing a Joinder Agreement in substantially ). In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of owned real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in other than the case Equity Interest of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (Permitted J/Vs not owned by any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), other Loan Party or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require . Each Loan Party will cause 65% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its Foreign Subsidiaries (other than the Equity Interest of any Permitted J/Vs not owned by any other Loan Party or Subsidiary) to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities for the benefit of the Borrower Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with documents as the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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, fee property mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties. For the avoidance of doubt, no Loan Party shall have any obligation to deliver any mortgages in respect of any leasehold interests in real property.
(d) Subject to the limitations set forth or referred to in this Section 5.11second sentence of clause (b) above and the final sentence of clause (c) above, if any material assets (including any owned fee real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 4 contracts
Sources: Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp), Credit Agreement (Potbelly Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Receivables Subsidiary or Business Securitization EntitiesSubsidiary) formed or acquired which becomes a Domestic Subsidiary after the Second Restatement Closing Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Amendment Agreement (Aramark Corp), Credit Agreement (Aramark Corp), Credit Agreement (Aramark Corp/De)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a subsidiary of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed Borrower by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic domestic Subsidiaries to be subject at all times to a first priority, perfected Lien (or, subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock 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)) of such Domestic Subsidiary) and (ii) 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 Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is other Loan Party and each subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any 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, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesSection 4.01 (as applicable).
(d) Subject to To the limitations set forth or referred to in this Section 5.11extent permitted hereunder, if any material assets (including any owned Loan Party proposes to acquire a fee ownership interest in real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value after the date of at least $5,000,000) are acquired by the this Agreement, each Borrower or any Subsidiary that is a will, and will cause each other Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to, first provide to the Collateral Agent a mortgage or deed of trust granting the Collateral Agent a first priority Lien in favor of the Agent upon acquisition thereofon such real property, together with environmental audits, mortgage title insurance commitment, real property survey, local counsel opinion(s), the Borrower will notify the Agent and the Lenders thereof, and, if requested required by the Agent or the Required LendersCollateral Agent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Collateral Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 3 contracts
Sources: Revolving Credit Agreement (Joe's Jeans Inc.), Term Loan Credit Agreement (Joe's Jeans Inc.), Revolving Credit Agreement (Joe's Jeans Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (Subsidiaries, other than any Immaterial Domestic Subsidiary that is an Excluded Subsidiary and (except as otherwise provided ii) each First-Tier Foreign DRE, in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) each case formed or acquired after the Second Restatement Closing Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to become a Loan Party Subsidiary Guarantor promptly (and in any event within 20 Business Days (forty-five days after the creation or acquisition thereof or after such later date as agreed Domestic Subsidiary ceases to by the Administrative Agent in its sole discretionbe an Excluded Subsidiary) by executing a Guarantor Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)H hereto. Upon execution and delivery thereof, each such Person shall (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents, (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent (for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties) to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.8 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Security Documents and in such priority as may be required pursuant to the terms of the Security Documents and (iii) subject to the terms of the Security Documents, deliver to the Administrative Agent the certificates, if any, representing all of the Capital Stock of such Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party.
(b) Holdings, the The Borrower and each Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock directly owned thereby of each of its Domestic Subsidiaries (orother than First-Tier CFC Holdcos), (ii) 100% of the issued and outstanding Capital Stock directly owned thereby of each of the First-Tier Foreign DREs and (iii) 100% of the Capital Stock directly owned thereby (but in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic SubsidiaryCapital Stock entitled to vote, a “DRE”) that holds not more than 65% of the Capital Stock constituting the total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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)vote) in each First-Tier Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party and First-Tier CFC Holdco, to be subject at all times pledged to a first priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents Security Agreement and, subject to the terms of the Security Documents, will deliver to the Administrative Agent the certificates, if any, representing such Capital Stock of such Subsidiary, together with undated stock powers or other security documents as appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the Agent shall reasonably request; provided, however, this paragraph (bholder(s) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCapital Stock.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02Sections 4.1 or 4.2, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 DocumentsSecurity Documents (subject to the terms of Term Loan/ABL Intercreditor Agreement), all at the expense of the Loan Parties.
(d) Subject With respect to the limitations set forth or referred to any interest in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those located in the United States having a fair market value value, together with improvements thereof of at least $5,000,000) are acquired 2,000,000 (as reasonably determined by the Borrower or Company in good faith) acquired after the Closing Date by any Subsidiary Loan Party that is a Group Member (or any Group Member required to become a Loan Party after pursuant to the Second Restatement Date terms of the Loan Documents) (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become any such real property subject to a Lien expressly permitted by clauses (i), (q) and (s) of Section 6.2 to the extent and for so long as the obligations relating to such Liens do not permit a Lien on such property in favor of the Agent upon acquisition thereofSecured Parties), the Borrower will notify the Agent promptly execute and the Lenders thereofdeliver a first priority Mortgage, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense favor of the Loan Parties.
(e) IfAdministrative Agent, at any time and from time to time after for the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as benefit of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries Secured Parties, covering such interest in real property, in each case subject only to Permitted Liens or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required other Liens acceptable to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueAgent.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (TMS International Corp.), Credit Agreement (TMS International Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a US Loan Party shall (within five days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Foreign Subsidiary) formed or acquired after the Second Restatement Date and or which cease to be Immaterial Subsidiaries (iiA) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a US Loan Party within 20 Business Days (or such later date as agreed by executing and delivering to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary grant to such Collateral Agent (for the benefit of the Agents, the Lenders and the Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent and Agents, the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofIssuing Banks), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or either 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 the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent and each Collateral Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent or any Subsidiary that is a Loan Party after either Collateral Agent, in the Second Restatement Date (other than assets constituting Collateral under exercise of its Permitted Discretion, in order to perfect or protect the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the applicable Collateral Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrowers will, Holdingsunless the Required Lenders otherwise consent, the Borrower and cause each Subsidiary that is a subsidiary of any Loan Party shall cause (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed Borrower by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsEach Borrower will, the Borrower and will cause each Subsidiary that is a other Loan Party will to cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries (orother than its Non-U.S. Subsidiaries) to be subject at all times to a first priority, perfected Lien (subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock 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)) of such Domestic Subsidiary) and (ii) 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 Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party Borrower will, and will cause each Subsidiary that is other Loan Party and each subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any 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, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan PartiesSection 4.01 (as applicable).
(d) Subject If any Loan Party proposes to acquire a fee ownership interest in real property after the date of this Agreement (to the limitations set forth or referred to in this Section 5.11extent such acquisition is permitted hereunder), if any material assets an Event of Default is continuing or if Availability is ever less than $6,000,000, each Borrower will, and will cause each other Loan Party to, provide to the Collateral Agent (including any owned upon the Administrative Agent’s request, which request may be made at the Administrative Agent’s sole option) a mortgage or deed of trust granting the Collateral Agent a first priority Lien on its real property, together with environmental audits, mortgage title insurance commitment, real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereofsurvey, local counsel opinion(s), the Borrower will notify the Agent and the Lenders thereof, and, if requested required by the Agent or the Required LendersCollateral Agent, the Borrower will cause such assets to be subjected to a Lien securing the Obligations supplemental casualty insurance and will takeflood insurance, and cause the Loan Parties that are Subsidiaries to takesuch other documents, such actions as shall be necessary instruments or agreements reasonably requested by the Agent to grant Collateral Agent, in each case, in form and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents substance reasonably satisfactory to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAgent.
Appears in 3 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) date of this Agreement or any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased limited liability companies formed pursuant to qualify as an Immaterial Subsidiary, any division to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Lender shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor or Borrower hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the AgentLender, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign foreign Subsidiary directly owned by the any Borrower or any domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent Lender, for the benefit of the Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Lender shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent Lender 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of Law or which the Agent Lender 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Agent and the Lenders thereof, Lender and, if requested by the Agent or the Required LendersLender, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Agent Lender to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp), Credit Agreement (CRAWFORD UNITED Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (e) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal Federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to Permitted Liens) perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 and other documents and such other actions or deliveries of the type required by Section 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the 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 (to the extent required therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material owned assets having a fair market value in excess of $2,000,000 (including any owned real property properly or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Section 5.11, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are real property required to be delivered pursuant mortgaged under this Section 5.11 shall be limited to this Agreement real property located in the U.S. that is owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $2,000,0000 or more (or provided that the cost of perfecting such later date as agreed Lien is not unreasonable in relation to by the benefits to the Lenders of the security afforded thereby in the Administrative Agent in its sole discretionAgent’s reasonable judgment after consultation with the Borrower), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each Subsidiary that is of the Parent (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Parent (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty.
(b) Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Loan Party which constitutes Collateral, including any parcel of real Property located in the U.S. owned by any Loan Party, and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as applicable). Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Parent’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Star Gas Partners Lp), Credit Agreement (Star Gas Partners Lp), Credit Agreement (Star Gas Partners Lp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesEntities (any such Subsidiary, an “Excluded Subsidiary”)) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Excluded Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02consistent with past practice, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including including, other than during any Mortgage Suspension Period, any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Incremental Term Loan Assumption Agreement (TransDigm Group INC), Incremental Term Loan Assumption Agreement (TransDigm Group INC), Loan Modification Agreement (TransDigm Group INC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 5.10, the limitations with respect to real property set forth in paragraph (e) of this Section 5.10 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal Federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock Equity Interests of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority (subject to Permitted Liens and the Intercreditor Agreement), perfected Lien in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Agents shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 and other documents and such other actions or deliveries of the type required by Section 4.024.01), as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents))applicable, which may be required by law or which the 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 (to the extent required therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.10, if any material owned assets having a fair market value in excess of $2,000,000 (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a other Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Section 5.10, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are real property required to be delivered pursuant mortgaged under this Section 5.10 shall be limited to this Agreement real property that is owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $2,000,0000 or more (or provided that the cost of perfecting such later date as agreed Lien is not unreasonable in relation to by the benefits to the Lenders of the security afforded thereby in the Administrative Agent in its sole discretionAgent’s reasonable judgment after consultation with the Borrower), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 3 contracts
Sources: Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (Tube City IMS CORP)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement (including, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days forty five days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, Holdings, the Borrower and each other Loan Party shall cause each of its Material Domestic Subsidiaries formed or acquired after the date of this Agreement (iiincluding, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) will simultaneously therewith in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within forty five days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) ), Holdings, the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as that is a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic SubsidiaryFSHCO) and (ii) 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)) of each Subsidiary that is a CFC or FSHCO (including any Subsidiary that becomes a CFC or FSHCO after the Effective Date), in each Foreign Subsidiary case, directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing or anything else herein or in any other Loan Document to the contrary, howeverin no event shall (A) the assets of any CFC or FSHCO constitute security or secure, this paragraph or such assets or the proceeds of such assets be required to be available for, payment of the Obligations, (bB) shall not require more than sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote of any CFC or FSHCO, in each case, owned directly by the Borrower or any Material Domestic Subsidiary be required to grant a security interest in be pledged to secure the Obligations or (iC) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests any CFC or FSHCO, in favor of the Agent or to secure any debt securities of each case, not owned directly by the Borrower or any Material Domestic Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary required to be filed with pledged to secure the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryObligations.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject ; provided that, notwithstanding anything else contained herein or in any other Loan Document to the limitations set forth or referred contrary, (x) the foregoing shall not apply to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is not a Material Domestic Subsidiary or property of any Subsidiary that is not Material Domestic Subsidiary or any Excluded Property (as defined in the Security Agreement), (y) any such documents and deliverables shall be governed by New York law and (z) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), leasehold mortgages or landlord waivers, estoppels or collateral access letters shall be required to be entered into hereunder or under any other Loan Document. Notwithstanding any provision set forth in this Agreement to the contrary, in no event shall any Loan Party after be required to (A) make any filings or take any other action to record or perfect the Second Restatement Date Administrative Agent’s interest in any intellectual property outside the U.S. or (other than B) take any actions in any non-U.S. jurisdiction or that are required by the laws of any non-U.S. jurisdiction in order to (x) create any security interests in such assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor located or titled outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent U.S. or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and (y) perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiessecurity interests.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 2 contracts
Sources: Credit Agreement (Integral Ad Science Holding Corp.), Credit Agreement (Integral Ad Science Holding Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdingseach Loan Party will cause each Domestic Subsidiary in existence on the Effective Date, the Borrower other than an Excluded Subsidiary, and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the “Joinder Agreement”)applicable "know your customer" rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party, other than real property subject to financing on such terms as may be required pursuant to the terms of the Collateral DocumentsEffective Date that is permitted under Section 6.01.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic an Excluded Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower such Loan Party or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than an Excluded Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (HF Foods Group Inc.), Credit Agreement (HF Foods Group Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, except as otherwise permitted hereunder (i) cause each Subsidiary that is of the Domestic Borrower (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Domestic Borrower (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Effective Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D F hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty and enter into a Security Agreement granting to the Agent, for the benefit of the Domestic Lenders, a first priority security interest in all of its personal property. Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(iib) will simultaneously therewith or as soon as practicable thereafter Upon the request of the Agent, (i) each Domestic Loan Party shall grant Liens to the AgentAgent in respect of the Obligations, each Canadian Loan Party shall grant Liens to the Canadian Correspondent Lender in respect of the Canadian Obligations and the UK Obligations, and each UK Loan Party shall grant Liens to the UK Correspondent Lender in respect of the UK Obligations and Canadian Obligations, in each case for the benefit of the Agent Applicable Agent, and the Lenders applicable Lenders, pursuant to such documents as the Applicable Agent may reasonably deem necessary and each other Secured Party at deliver such time party property, documents, and instruments as the Applicable Agent may request to or benefiting from perfect the Guarantee and Collateral Agreement to Liens of the extent required by the terms thereof, Agent in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party which constitutes Collateral, on such terms and (ii) in connection with the foregoing requirements, deliver to the Agent all items of the type required by Section 4.1 (as may applicable). Notwithstanding the foregoing, the Loan Parties shall not be required pursuant to grant mortgages for the terms benefit of the Collateral DocumentsApplicable Agent and the Domestic Lenders on their real Property (other than those granted on or before the Effective Date) so long as the Availability exceeds $25,000,000. If, at any time, the Availability falls below $25,000,000, the Agent, in the Agent’s sole and absolute discretion, shall have the right to require perfected, first priority mortgage liens on the Domestic Borrower’s real Property located in the United States at the Domestic Borrower’s sole cost and expense. Upon the occurrence of a Default, the Agent, in the Agent’s sole and absolute discretion, shall have the right to require perfected, first priority liens on the real Property of the Canadian Borrower and the UK Borrower at such Borrower’s sole cost or expense.
(bc) Holdings, the Borrower and each Subsidiary that is a Loan Party The Parent will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided. Upon the occurrence and at all times during the existence of a Default under this Agreement, howeverthe Domestic Borrower shall, this paragraph upon the request of Agent, in its sole and absolute discretion, cause (bi) shall 100% of the issued and outstanding Capital Stock of each of its Domestic Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the date hereof, (1) could not require reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each first-tier Foreign Subsidiary directly owned by the Domestic Borrower or any Domestic Subsidiary to grant be subject at all times to a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or pursuant to secure any debt securities the terms and conditions of the Borrower Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarydocuments.
(cd) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of its Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent and the Required Lenders 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Park Ohio Industries Inc/Oh), Credit Agreement (Park Ohio Holdings Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed by executing a joinder agreement in form satisfactory to by the Administrative Agent. In connection therewith, the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially shall have received all documentation and other information regarding such newly formed or acquired Domestic Subsidiaries as may be required to comply with the form set forth as Exhibit D hereto (applicable “know your customer” rules and regulations, including the “Joinder Agreement”)USA Patriot Act. Upon execution and delivery thereof, each such Person Domestic Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any parcel of real property located in the U.S. owned by such terms as may Loan Party. For the avoidance of doubt and notwithstanding anything to the contrary contained herein or in any other Loan Document, the Excluded Foreign Subsidiaries shall not be required pursuant to the terms become Loan Parties hereunder and no property or assets of the Collateral Documentsany Excluded Foreign Subsidiary shall constitute or be required to constitute any collateral for any Obligations.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of it owns in each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary with respect to the extent pledge by a pledge Loan Party of such its owned Equity Interests in favor an Excluded Foreign Subsidiary, only the pledge of Equity Interests in a Mexican Subsidiary shall be required to be governed by the laws of the Agent or to secure any debt securities jurisdiction of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Excluded Foreign Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Domestic Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) IfNotwithstanding anything to the contrary in this Agreement, at including without limitation clauses (a) through (d) of this Section 5.14, upon the acquisition by the Borrower or any time and from time to time Loan Party after the Second Restatement DateEffective Date of any interest in any real property (wherever located) with a value in excess of $500,000, Domestic Restricted Subsidiaries that are not the Borrower or such other Loan Parties because they are Immaterial Subsidiaries comprise Party, as applicable, shall promptly (but in any event within five (5) Business Days of its acquisition thereof) so notify the aggregate more than 7.5% of Total Assets as Administrative Agent, setting forth a reasonably detailed description of the end interest acquired, the location of the most recently ended fiscal quarter real property, any structures or improvements thereon and either an appraisal or the Borrower’s or such other Loan Party’s good faith estimate of the current value of such real property. The Administrative Agent shall notify the Borrower or such other Loan Party in writing (including, for the avoidance of doubt, by electronic mail) whether it intends to require a Mortgage with respect to such property. Within sixty (60) days of the written request of the Administrative Agent, the Person that has acquired such property shall furnish a Mortgage to the Administrative Agent to create a valid and enforceable Lien (subject only to Permitted Encumbrances) in favor of the Administrative Agent for the benefit of itself, the Lenders and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of other Secured Parties (all at the Borrower cost and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter expense of the Borrower, then ). In connection with the Borrower shall, not later than 45 days after the date by which financial statements for granting of such quarter are required Mortgages to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contraryAgent, the Loan Parties shall not be required provide to grant a security interest the Administrative Agent (i) such title insurance policies, ALTA/ACSM surveys, Phase I environmental site assessment reports, opinions of counsel, and such other deliverables as reasonably requested in any personal property writing (including, for the avoidance of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined doubt, by electronic mail) by the Administrative Agent, all in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 favor of the Guarantee Administrative Agent for the benefit of the Secured Parties and Collateral Agreement(ii) flood certificates, and, if such parcel of real property is deemed by the Administrative Agent to be in a “Special Flood Hazard Area” as designated on maps prepared by the Federal Emergency Management Agency, a flood notification form signed by the Borrower and evidence that flood insurance is in place for the building and the contents, all in form substance and amount reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Sigmatron International Inc), Credit Agreement (Sigmatron International Inc)
Additional Collateral; Further Assurances. (ai) Subject to applicable law, Holdingsexcept as set forth in Section 6.03(m)(v), each Borrower shall cause each of its wholly-owned Material Domestic Subsidiaries, formed or acquired on or after the Borrower and each date of this Agreement in accordance with the terms of this Agreement to become a Guarantor (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a Loan Party wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) be deemed to be an acquisition for the purposes of this Section 5.11Agreement), Unrestricted Subsidiary or Securitization Entitieswithin thirty (30) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a Joinder Agreement in substantially the form joinder agreement set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(ii) will simultaneously therewith Subject to applicable law, except as set forth in Section 6.03(m)(v), each Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall be deemed to be an acquisition for the purposes of this Agreement) and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, (A) within thirty (30) days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, and (a) solely with respect to a Material Domestic Subsidiary, within sixty (60) days (or such later date as the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such terms Subsidiary becomes a Material Domestic Subsidiary, as may be required applicable) to execute a Mortgage, pursuant to which such Material Domestic Subsidiary shall grant Liens to the terms Administrative Agent, for the benefit of the Collateral DocumentsAdministrative Agent and the Lenders, in any property of such Loan Party which constitutes Material Real Property and satisfy all Mortgage Requirements in connection therewith.
(biii) HoldingsSubject to the foregoing clauses (i) and (ii), the Borrower and except as set forth in Section 6.03(m)(v), each Subsidiary that is a Loan Party (other than Allkem) will cause (iA) 100% of the issued and outstanding Equity Interests Stock of each of its Domestic Subsidiaries and (or, in the case of (Ab) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Stock 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)) of such Domestic Subsidiary) and (ii) 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 Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Excluded Subsidiary (including any Subsidiary who becomes an Excluded Subsidiary after the Effective Date) directly owned by the Borrower or any Subsidiary that is a such Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Livent Corp.), Credit Agreement (Arcadium Lithium PLC)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower The Company and each Subsidiary that is a Loan Party shall cause within ten Business Days (or such longer period as may be agreed to by the Administrative Agent) after formation or acquisition of a Restricted Subsidiary which is not an Excluded Subsidiary, or any Restricted Subsidiary ceasing to be an Excluded Subsidiary, (i) each of its Domestic Subsidiaries (other than any Immaterial cause such Restricted Subsidiary (except as otherwise provided in paragraph (eA) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date and a Grantor under, and as agreed defined in, the Security Agreement by executing and delivering to by the Administrative Agent in its sole discretion) by executing and to the Collateral Agent a Joinder Agreement in substantially the form set forth as Exhibit D hereto (or such other form as reasonably agreed between the Administrative Agent and the Borrower, each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Collateral Agent deems necessary for such new Restricted Subsidiary to grant to such Collateral Agent (for the benefit of the Credit Parties) a perfected security interest in the Collateral with respect to such new Restricted Subsidiary and (ii) deliver to the Collateral Agent the certificates, if any, representing all of the Capital Stock of such Restricted Subsidiary, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Capital Stock. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Collateral Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofCredit Parties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law the Administrative Agent or which the 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 the presentation, validity, perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject . In addition, each Loan Party will upon the request of the Administrative Agent, execute and deliver, or cause to be executed and delivered, to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested Collateral Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent or the Required Lenders, Collateral Agent in order to perfect or protect the Borrower will cause such assets to be subjected to a Lien securing Liens of the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan Parties.
(e) If, at provided that notwithstanding anything herein or in any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not other Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents Document to the contrary, under no circumstances will any Loan Party be obligated to enter into any mortgages (other than with respect to the Headquarters) or any deposit account control agreements, securities account control agreements, or other lockbox or control agreements, or to obtain bailee agreements or landlord or mortgagee waivers, or to send any notices to account debtors or other contractual third parties prior to the occurrence of an Event of Default, or enter security agreements or pledge agreements or similar agreements governed under the laws of any non-U.S. jurisdiction; provided, that, the Collateral Agent may require a Loan Parties shall not be required Party to grant enter into a security interest deposit account control agreement in respect of any personal property deposit account of such Loan Party as to which a type that would not constitute Pledged deposit account control agreement has been entered into for the benefit of the ABL Debt under the ABL Credit Agreement, unless the ABL Collateral or Article 9 Collateral (each Agent is acting as defined in the Guarantee and Collateral Agreement) bailee for such deposit account pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Intercreditor Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) that is not a CFC formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (the Administrative Agent may request to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of directly held by such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) no more than 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a first-tier CFC (excluding Roblox China), in each case directly owned such Loan Party Party, to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoingforegoing but subject to the limitations and qualifications set forth in this Agreement and the other Loan Documents, each Loan Party will, and will cause each direct Subsidiary that is not a Loan Party CFC to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject in form and substance reasonably satisfactory to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Roblox Corp), Credit Agreement (Roblox Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the later to occur of (i) 30 days following the date of such creation or acquisition and (ii) any the earlier of the date of the required delivery of the next Compliance Certificate following such Domestic Subsidiary that was an Immaterial Subsidiary but, as of creation or acquisition and the date which is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Subsidiary Borrower Joinder Agreement or a Subsidiary Guarantor Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Subsidiary Guarantor Joinder Agreement” and, together with each Subsidiary Borrower Joinder Agreement, each individually a “Joinder Agreement” and, collectively, the “Joinder Agreements”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor or a Subsidiary Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (d) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents; provided that in no event will any Loan Documents Party be required to pledge or other security documents perfect more than 65.0% of the equity interests as the Agent shall reasonably request; provideddetermined for U.S. federal income tax purposes of any Foreign Subsidiary, however, this paragraph (b) shall not require the Borrower FSHCO Subsidiary or any Disregarded Domestic Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the 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 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 (to the extent required herein or therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) Material Real Estate Assets are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower Agent will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 90 days of such request (or such longer period as may be acceptable to the Administrative Agent) the Borrower Agent will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party 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 (c) of this SectionSection and with respect to Material Real Estate Assets, clause (ii) of Section 5.13(a), all at the expense of the Loan Parties. Notwithstanding the foregoing, no Mortgage shall be required in respect of any Material Real Estate Asset acquired by any Loan Party after the Closing Date until the date that occurs 30 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Material Real Estate Asset: (i) a completed flood hazard determination from a third party vendor, (ii) if such Material Real Estate Asset is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Material Real Estate Asset is located, evidence of flood insurance as required by Section 5.05; provided that any such Mortgage may be granted prior to the notice period specified above if the Administrative Agent shall have received written confirmation from each applicable Lender that such Lender has completed any necessary flood insurance due diligence to its reasonable satisfaction.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at the Borrower Agent shall cause such Domestic Subsidiary to take all actions required by this Section 5.12 (within the time periods specified herein) as if such Domestic Subsidiary were then formed or acquired. Notwithstanding anything to the contrary in this Section 5.12 or any time and from time other Collateral Document, (a) the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to time after which the Second Restatement Datecost of obtaining or perfecting such Lien (including any mortgage, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the aggregate more than 7.5% of Total Assets as benefit to the Lenders of the end of the most recently ended fiscal quarter of security afforded thereby as reasonably determined by the Borrower Agent and the Restricted Subsidiaries or more than 7.5% Administrative Agent, (b) no Lien in Real Estate Assets shall be required except in respect of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by Material Real Estate Assets (provided that in any jurisdiction in which financial statements for such quarter are a tax is required to be delivered pursuant paid in respect of the Mortgage on real property located in such jurisdiction based on the entire amount of the Secured Obligations, the amount secured by such Mortgage shall be limited to this Agreement (or such later date as agreed the estimated fair market value of the property to by be subject to the Mortgage determined in a manner reasonably acceptable to Administrative Agent in its sole discretionand the Borrower Agent), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesc) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties no actions shall not be required to be taken in order to create or grant a any security interest in any personal property assets located outside of a type that would not constitute Pledged Collateral the United States and no foreign law security or Article 9 Collateral pledge agreements shall be required and (each as defined d) Liens required to be granted or perfected pursuant to this Section 5.12 shall be subject to the Intercreditor Agreement and to exceptions and limitations consistent with those set forth in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementDocuments.
Appears in 2 contracts
Sources: Abl Credit Agreement (Party City Holdco Inc.), Abl Credit Agreement (Party City Holdco Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party Party, within 20 Business Days 30 days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within 30 days (iior such later date as the Administrative Agent may agree) will simultaneously therewith after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Material Foreign Subsidiary (including any Subsidiary who becomes a Material Foreign Subsidiary after the Effective Date) directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the The U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Excluded Subsidiary) which becomes a Domestic Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Excluded Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party as promptly thereafter as reasonably practicable (and in any event within 20 Business Days 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such later date longer time period as may be reasonably agreed to by the Administrative Agent in its sole discretionAgent)) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (and in any event within 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer time period as may be reasonably agreed to by the Agent)) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties to the extent required by the terms thereofof the Collateral Documents, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral(other than Excluded Assets), on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryotherwise constitute Excluded Assets.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Incremental Amendment (Aramark), Credit Agreement (Aramark)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a US Loan Party shall (within five days after such formation or acquisition, or determination that such Subsidiary is no longer an Immaterial Subsidiary, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Foreign Subsidiary) formed or acquired after the Second Restatement Effective Date and or which cease to be Immaterial Subsidiaries (iiA) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a US Loan Party within 20 Business Days (or such later date as agreed by executing and delivering to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary grant to such Collateral Agent (for the benefit of the Agents, the Lenders and the Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent and Agents, the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofIssuing Banks), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or either 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 the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent and each Collateral Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent or any Subsidiary that is a Loan Party after either Collateral Agent, in the Second Restatement Date (other than assets constituting Collateral under exercise of its Permitted Discretion, in order to perfect or protect the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the applicable Collateral Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the (i) each Borrower and each Subsidiary that is a Loan Party shall (within 30 days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement in accordance with the terms of this Agreement (iiother than Excluded Subsidiaries) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, (A) to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”), (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) of any applicable jurisdiction) and (B) for each such Person that is not organized under the laws of any State of the United States, provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person, (ii) if at any time an Excluded Subsidiary ceases to be an Excluded Subsidiary, each Borrower and each Subsidiary that is a Loan Party (within 30 days of such event or such longer period as the Administrative Agent may agree) shall cause such Subsidiary (x) to become a Loan Party by executing the Joinder Agreement (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person and (iii) if, as of the last day of any fiscal quarter of the Company and its Subsidiaries, (A) the aggregate amount of total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries (other than Northeast Retailer Group) exceeds 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than Northeast Retailer Group) at such date or (B) the aggregate amount of EBITDA contributed by all Excluded Subsidiaries and Unrestricted Subsidiaries (other than Northeast Retailer Group) exceeds 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than Northeast Retailer Group) most recently ended for which financial statements have been or are required to have been delivered pursuant to Sections 4.01(b), 5.01(a) or 5.01(b), as applicable, each Borrower and each Subsidiary that is a Loan Party (within 30 days of the delivery of such financial statements or such longer period as the Administrative Agent may agree) shall cause a sufficient number of Excluded Subsidiaries and/or Unrestricted Subsidiaries (other than the Northeast Retailer Group) (x) to become Loan Parties by executing the Joinder Agreement and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be Cott Beverages) of its appointment as process agent by such Person, such that the total assets of, and EBITDA contributed by, the remaining Excluded Subsidiaries and Unrestricted Subsidiaries (other than the Northeast Retailer Group) represent less than 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than Northeast Retailer Group) at such date and less than 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than Northeast Retailer Group) for such period. Upon execution and delivery thereofof such a Joinder Agreement, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Collateral Agent, for the benefit of the Agent Administrative Agent, the Collateral Agents and the Lenders and each other Secured Party at such time party to Lenders, or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofUK Security Trustee, as applicable, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including, to the terms extent requested by the Administrative Agent in its Permitted Discretion, any parcel of real property located in the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsEach Borrower (other than the U.S. Co-Borrowers) and each Subsidiary that is a Loan Party (other than any Subsidiary that is organized under the laws of any State of the United States or the District of Columbia) will cause 100% of the issued and outstanding Equity Interests of each of their respective Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Collateral Agent or the UK Security Trustee, as applicable, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request (subject to Permitted Perfection Limitations). Each U.S. Co-Borrower and each Subsidiary that is a Loan Party organized under the laws of any State of the United States or the District of Columbia will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries and any Interim Holdco owned by it and (orii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic foreign Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) ’s U.S. parent and (ii2) 65% could not reasonably be expected to cause any material adverse tax consequences) 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 Foreign foreign Subsidiary other than an Interim Holdco directly owned by the such U.S. Co-Borrower or any Subsidiary that is a domestic Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent Administrative Collateral Agent, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph request (b) shall not require the Borrower or any Subsidiary subject to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryPermitted Perfection Limitations).
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 (subject to Permitted Perfection Limitations), all at the expense of the Loan Parties. In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the Administrative Collateral Agent or the UK Security Trustee granted under any Collateral Document in any Intellectual Property at the expense of the Lenders (unless an Event of Default is then continuing, in which event such filings shall be at the expense of the Loan Parties).
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of the Agent applicable Security Agreement upon acquisition thereofthereof and assets specifically excluded from Collateral under the Security Agreements), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent in its Permitted Discretion or by the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the other Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the (i) each Borrower and each Subsidiary that is a Loan Party shall (within 30 days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic their respective Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement in accordance with the terms of this Agreement (iiother than Excluded Subsidiaries) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, (A) to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”), (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) of any applicable jurisdiction) and (B) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person, (ii) if at any time an Excluded Subsidiary ceases to be an Excluded Subsidiary, each Borrower and each Subsidiary that is a Loan Party (within 30 days of such event or such longer period as the Administrative Agent may agree) shall cause such Subsidiary (x) to become a Loan Party by executing the Joinder Agreement (provided, however, that a Subsidiary of the UK Borrower shall not be required to execute a Joinder Agreement to the extent that to do so would result in any breach of corporate benefit, financial assistance, fraudulent preference or thin capitalization laws or regulations (or analogous restrictions) and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person and (iii) if, as of the last day of any fiscal quarter of the Company and its Subsidiaries, (A) the aggregate amount of total assets of all Excluded Subsidiaries and Unrestricted Subsidiaries (other than [***]) exceeds 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than [***]) at such date or (B) the aggregate amount of EBITDA contributed by all Excluded Subsidiaries and Unrestricted Subsidiaries (other than [***]) exceeds 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than [***]) most recently ended for which financial statements have been or are required to have been delivered pursuant to Sections 4.01(b), 5.01(a) or 5.01(b), as applicable, each Borrower and each Subsidiary that is a Loan Party (within 30 days of the delivery of such financial statements or such longer period as the Administrative Agent may agree) shall cause a sufficient number of Excluded Subsidiaries and/or Unrestricted Subsidiaries (other than the [***]) (x) to become Loan Parties by executing the Joinder Agreement and (y) provide the Administrative Agent with evidence of the acceptance by the Process Agent (which may be the U.S. Borrower) of its appointment as process agent by such Person, such that the total assets of, and EBITDA contributed by, the remaining Excluded Subsidiaries and Unrestricted Subsidiaries (other than the [***]) represent less than 5.0% of the consolidated total assets of the Company and its Subsidiaries (other than [***]) at such date and less than 5.0% of EBITDA for the period of four fiscal quarters of the Company and its Subsidiaries (other than [***]) for such period. Upon execution and delivery thereofof such a Joinder Agreement, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Collateral Agent, for the benefit of the Agent Administrative Agent, the Collateral Agents and the Lenders and each other Secured Party at such time party to Lenders, or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofUK Security Trustee, as applicable, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including, to the terms extent requested by the Administrative Agent in its Permitted Discretion, any parcel of real property located in the Collateral Documents.U.S. owned by any Loan Party. [Names redacted]
(b) Holdings, Each Borrower (other than the Borrower U.S. Borrower) and each Subsidiary that is a Loan Party (other than any Subsidiary that is organized under the laws of any State of the United States or the District of Columbia) will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic their respective Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Collateral Agent or the UK Security Trustee, as applicable, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph request (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereofPermitted Perfection Limitations), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Cott Corp /Cn/), Credit Agreement (Cott Corp /Cn/)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, each Loan Party will cause each of its Subsidiaries formed or acquired after the Borrower and each Subsidiary that is date of this Agreement to become a Loan Party shall cause (iother than (x) each of its Domestic any Excluded Subsidiaries (other than any Immaterial CFC Subsidiary) (unless such Excluded Subsidiary (except as otherwise provided in paragraph (eceases to be an Excluded Subsidiary) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (iiy) any CFC Subsidiary to the extent such Domestic CFC Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become becoming a Loan Party would cause materially adverse tax consequences to the Borrower), within 20 Business Days 30 days of formation or acquisition of such Subsidiary (or such later date as agreed or, with respect to by any Subsidiary of Merger Sub, on the Administrative Agent in its sole discretion) Merger Effective Date), by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries; provided that to the extent such pledges with respect to any CFC Subsidiary would cause materially adverse tax consequences, in the case of such pledges will be limited to (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 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 Foreign such CFC Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require the Borrower or any Subsidiary to Holdings will pledge and grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities in 100% of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the issued and outstanding Equity Interests of any Unrestricted Subsidiarythe Borrower.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,00010,000,000 or improvements thereto or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) promptly, notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations within 30 days of acquisition thereof and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (CompoSecure, Inc.), Credit Agreement (CompoSecure, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party Party, within 20 Business Days 30 days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within 30 days (iior such later date as the Administrative Agent may agree) will simultaneously therewith after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Material Foreign Subsidiary (including any Subsidiary who becomes a Material Foreign Subsidiary after the Amendment and Restatement Effective Date) directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (ExlService Holdings, Inc.), Credit Agreement (ExlService Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Wholly-Owned Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted ) or Receivables Subsidiary) which becomes a Wholly-Owned Domestic Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date and (ii) any such Wholly-Owned Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (but in any case not more than 90 days (or such longer period as (A) may be required to the extent the U.S. Borrower is diligently pursuing such actions required to be taken under this Section 5.11(a) and (B) may be agreed by the Agent in its sole discretion) after becoming a Loan Guarantor) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (g) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Forbearance Agreement and Third Amendment to Credit Agreement (Hawker Beechcraft Notes Co), Credit Agreement (Hawker Beechcraft Quality Support Co)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic domestic and Canadian Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E-1 hereto (the “Loan Party Joinder Agreement”). Notwithstanding the foregoing, if the newly formed or acquired Subsidiary has assets that are to be included in the Borrowing Base, such Subsidiary shall become a Borrower hereunder by executing the Joinder Agreement set forth as Exhibit E-2 hereto (the “Borrower Joinder Agreement” and collectively with the Loan Party Joinder Agreement, the “Joinder Agreements”, and each individually a “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become either a Loan Party Guarantor or a Borrower, as appropriate in the reasonable judgment of the Administrative Agent, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any material property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party Person which constitutes Collateral, on including any material parcel of real property located in the U.S. or Canada owned by such terms as may be required pursuant to the terms Person, except for Equity Interests in a foreign subsidiary representing more than 65% of the Collateral Documentstotal combined voting power in such foreign subsidiary.
(b) Holdings, the Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic and Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) Canada and (ii) 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 Foreign foreign Subsidiary (excluding Subsidiaries in Canada) directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting Subject to the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the any Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Security Agreement upon acquisition thereof), the Borrower Borrowers will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower Borrowers will cause such assets assets, except for Equity Interests in a foreign subsidiary representing more than 65% of the total combined voting power in such foreign subsidiary, to be subjected to a Lien securing the Secured Obligations and will take, and cause the Subsidiary Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Core-Mark Holding Company, Inc.), Credit Agreement (Core-Mark Holding Company, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Loan Party will cause each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)formed, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such acquired or (iii) that qualifies independently as, or is designated by the Borrower or the Administrative Agent as a Material Domestic Subsidiary that was an Immaterial Subsidiary butpursuant to the definition of “Material Domestic Subsidiary”, as in each case after the date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) except any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Excluded Domestic Subsidiary) and (ii) 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 Domestic Subsidiary Holding Company and in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party (except any such Foreign Subsidiary owned by a Domestic Subsidiary Holding Company) to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require . Each Domestic Subsidiary Holding Company that is a Loan Party will cause 100% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its Domestic Subsidiaries (except any Excluded Domestic Subsidiary) to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or to secure any debt securities Administrative Agent, for the benefit of the Borrower Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with documents as the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets (other than with respect to any real property or improvements thereto or any interest therein) to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions (other than with respect to any real property or improvements thereto or any interest therein) as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.), Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the The U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Excluded Subsidiary) which becomes a Domestic Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Excluded Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Excluded Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party as promptly thereafter as reasonably practicable (and in any event within 20 Business Days 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such later date longer time period as may be reasonably agreed to by the Administrative Agent in its sole discretionAgent)) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter (and in any event within 30 days of the date such Subsidiary becomes a Domestic Subsidiary or ceases to be an Excluded Subsidiary (or such longer time period as may be reasonably agreed to by the Agent)) grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Parties to the extent required by the terms thereofof the Collateral Documents, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral(other than Excluded Assets), on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments or otherwise constitute Excluded Assets.
(b) Holdings, the The U.S. Borrower and each Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiaryany FSHCO, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign any Receivables Subsidiary and/or and (z) any Domestic Subsidiary described in clause (Bcreated pursuant to and solely for the purpose of Section 6.06(r), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) (A) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 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 case of clause (A) and (B) above, of each Foreign Subsidiary and FSHCO owned directly owned by the U.S. Borrower or any Subsidiary that is a Loan Party Guarantor to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, that (x) this paragraph clause (b) shall not require the Borrower or any Subsidiary Loan Party to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySubsidiary and (y) no pledge of any Equity Interests shall be required to the extent such Equity Interests are excluded from the Collateral pursuant to the terms of the Security Agreement.
(c) Without limiting the foregoing, each Loan Party (other than any Foreign Borrower) will, and will cause each Subsidiary that is a Loan Party (other than any Foreign Borrower) to, execute and deliver, or cause to be executed and delivered, to the 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 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be are required by law or and which the 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 (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Security Agreement), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the U.S. Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than (i) Excluded Assets and (ii) assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the U.S. Borrower will notify the Agent and the Lenders thereof, and, if requested by and the Agent or the Required Lenders, the U.S. Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions (including, with respect to real property, the deliverables listed on Schedule 5.12) as shall be necessary or reasonably requested by the Agent to grant and perfect such LiensLiens (in each case, to the extent required under clauses (a), (b) and (c) above, clause (f) below, Section 5.12 and by the Security Agreement), including actions described in paragraph clause (c) of this SectionSection 5.11, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties Excluded Subsidiaries solely because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the U.S. Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the U.S. Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the BorrowerTest Period, then the U.S. Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the United States of America owned in fee by a Loan Party having a fair market value at the time of the acquisition thereof of $15.0 million or more and that does not otherwise constitute an Excluded Asset (as defined in the Security Agreement) (provided that the cost of perfecting such Lien is not unreasonable in relation to the benefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the U.S. Borrower).
(g) Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this Section 5.11 (or other provision of the Loan Documents Documents) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of guarantees by any Subsidiary, if, and for so long as and to the contraryextent that the Agents and the U.S. Borrower reasonably agree in writing that the cost of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such guarantees (taking into account any material adverse Tax consequences to Holdings and its Subsidiaries (including the Loan Parties imposition of withholding or other material Taxes)), shall not be excessive in view of the benefits to be obtained by the Lenders therefrom, (b) in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts or commodities accounts, (c) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (d) no perfection actions shall be required with respect to commercial tort claims with a value less than $10.0 million and no perfection actions shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $10.0 million (other than the filing of UCC financing statements), (e) no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to grant be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any foreign intellectual property) or to perfect or make enforceable any security interests in any such assets (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (f) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements) and (g) in no event shall the Collateral include any personal property Excluded Assets. The Agent may grant extensions of a type time or waivers for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any guarantee by any Subsidiary where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would not constitute Pledged Collateral otherwise be required to be accomplished by this Agreement or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementother Loan Documents.
Appears in 2 contracts
Sources: Credit Agreement (Aramark), Credit Agreement (Aramark)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Intercreditor Agreement or the Security Agreement (including, if applicable, the holders of the 2028 Debentures or the 2008 Notes), in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates the delivery of the items contemplated by paragraph (m) thereof to the extent the Borrower has been unable to deliver such items by the Closing Date after having used its commercially reasonable efforts to obtain and corporate and organizational documentsdeliver such items by the Closing Date)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the U.S. that are full-line Neiman Marcus retail stores owned in fee by a Loan Party or leased by a Loan Party pursuant to a financeable lease or other real property owned in fee by a Loan Party having a fair market value at the time of the Loan Documents acquisition thereof of $5,000,000 or more (provided that the cost of perfecting such Lien is not unreasonable in relation to the contrarybenefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the Borrower; provided further that the Borrower shall use commercially reasonable efforts to ensure that all leases entered into after the Closing Date by the Borrower and the other Loan Parties will be financeable leases).
(g) Notwithstanding anything to the contrary contained herein, the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 2 contracts
Sources: Credit Agreement (Neiman Marcus Group Inc), Credit Agreement (Neiman Marcus, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days on or prior to the later to occur of (i) the date that is 60 days following the date of such formation or acquisition and (ii) the next date a Compliance Certificate is required to be delivered following the date of such formation or acquisition (or, in either case, such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing (i) a Joinder Agreement in substantially the form set forth attached as Exhibit D hereto (the “Joinder Agreement”), (ii) a Security Agreement Joinder Agreement and (iii) the Global Intercompany Note. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith take such actions as may be required by the terms hereof or as soon as practicable thereafter of the applicable Collateral Documents to grant and perfect Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as are required pursuant to the terms of the Collateral Documents and in such priority as may be required pursuant to the terms of the Collateral DocumentsIntercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party Guarantor will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of of, and to the Loan Documents or other security documents as extent required by, the Agent shall reasonably requestCollateral Documents; provided, howeverthat, this paragraph (b) shall not require in no event will the Borrower or any Subsidiary Guarantor be required to grant a security interest in (i) pledge or perfect more than 65.0% of the voting Capital Stock of any Equity Interests of a first-tier Foreign Subsidiary to the extent a pledge or Disregarded Domestic Subsidiary of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, subject to the Intercreditor Agreement, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the 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 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 9.03(a).
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof)Closing Date, the Borrower will notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent Administrative Agent, within 90 days of such request (or such longer period as may be acceptable to the Required Lenders, Administrative Agent) the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party 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 (c) of this SectionSection 5.12, all at the expense of the Borrower in accordance with Section 9.03(a). The Loan PartiesParties shall within 90 days following a request by the Administrative Agent (or such longer period as the Administrative Agent may agree in its sole discretion) cause the Mortgages on each such Material Real Estate Asset acquired by any Loan Party after the Closing Date to be executed, delivered and recorded and in connection therewith deliver corresponding UCC fixture filings, flood hazard determination forms, title insurance policies (including any customary endorsements thereto), surveys, local counsel opinions and other documentation, in each case, that the Administrative Agent shall reasonably require.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at the Borrower shall cause such Domestic Subsidiary to take all actions required by this Section 5.12 (within the time periods specified herein) as if such Domestic Subsidiary were then formed or acquired. Notwithstanding anything to the contrary in this Section 5.12 or any time other Collateral Document, (a) no Loan Party shall be required to grant any Lien on, or take any other action with respect to a Lien on, any Excluded Assets, (b) no Loan Party shall be required to perfect any Lien granted in assets as to which the cost, burden, difficulty or consequence of perfecting such Lien (including (x) any mortgage, stamp, intangibles or other tax or expenses relating to such Lien and from time (y) any effect on the ability of the relevant Loan Party to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise conduct its operations and business in the aggregate more than 7.5% of Total Assets as ordinary course) outweighs the benefit to the Lenders of the end of the most recently ended fiscal quarter of security afforded thereby as reasonably determined by the Borrower and the Restricted Subsidiaries Administrative Agent (it being understood that the maximum guaranteed or more than 7.5% secured amount may be limited to minimize stamp duty, notarization, registration or other applicable fees, taxes and duties where the benefit to the Lenders of Consolidated EBITDA increasing the guaranteed or secured amount is disproportionate to the level of the Borrower such fee, taxes and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowerduties), then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are (c) no actions shall be required to be delivered taken in order to create, grant or perfect any security interest in any assets located outside of the U.S. and no foreign law security or pledge agreements, foreign law mortgages or deeds or foreign intellectual property filings or searches shall be required, (d) Liens required to be granted or perfected pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to Section 5.12 shall be true.
(f) Notwithstanding any provision of the Loan Documents subject to the contraryIntercreditor Agreement and to exceptions and limitations consistent with those set forth in the Collateral Documents, (e) the Loan Parties shall not be required to grant seek or obtain any landlord lien waiver, estoppel, warehousemen waiver or other collateral access or similar letter or agreement and (f) no Loan Party shall be required to take any action with respect to perfection of any security interest in (A) assets requiring perfection through control agreements or other control arrangements, including deposit, securities and commodities accounts (other than control of promissory notes and pledged Capital Stock as provided in this Agreement and the Pledge and Security Agreement and filing of UCC-1 financing statements), (B) vehicles or other assets subject to state law certificate of title statutes, (C) commercial tort claims asserting damages of less than $10,000,000 or (D) letter of credit rights to the extent a security interest in any personal property therein may not be perfected as supporting obligations by the filing of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in UCC-1 financing statement on the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementprimary collateral.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (PSAV, Inc.), First Lien Credit Agreement (PSAV, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesFSHCO) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased this Agreement to qualify as an Immaterial Subsidiary, to promptly become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)joinder agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party (other than Excluded Assets).
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orother than Excluded Subsidiaries and any FSHCO) and (ii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary as determined for U.S. Federal income tax purposes to be treated as a disregarded entity for deemed dividend to such foreign Subsidiary’s U.S. federal income parent and (2) could not reasonably be expected to cause any adverse tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% consequences in the reasonable opinion of the Capital Stock of (xBorrower) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary and each FSHCO directly owned by the Parent, the Borrower or any Domestic Subsidiary that is a Loan Party (excluding any FSHCO) to be subject at all times to a first priority (subject to the Intercreditor Agreement), perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than Excluded Subsidiaries) to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 (in each case subject to the qualifications, if any, set forth in the Loan Documents) of the Liens created or intended to be created by the Collateral Documents, all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets constituting Collateral (including any owned real property or improvements thereto or any interest therein, but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect (in each case subject to the qualifications, if any, set forth in the Loan Documents) such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.), Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party by executing the Joinder Agreement and taking all actions required by the Collateral Documents to create the liens created thereunder within 20 Business Days thirty (30) days (or such later date as may be agreed to upon by the Administrative Agent in its sole discretionAgent) by executing a of such formation, or acquisition, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in substantially form and substance reasonably satisfactory to the form set forth as Exhibit D hereto (the “Joinder Agreement”)Administrative Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsWithout limiting the generality of the foregoing, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority second priority, perfected Lien (except in the case of the Pledged Specified Assets, which will be subject at all times to a first priority, perfected Lien) in favor of the Administrative Agent pursuant for the benefit of the Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or such other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Foreign Subsidiary to formed after the extent a pledge Effective Date shall be required hereunder (i) until not later than 30 days after the formation of such Equity Interests Foreign Subsidiary, or such shorter time as provided in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC First Lien Credit Agreement (or any other government agencysuch later date as may be agreed upon by the Administrative Agent) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) to the Equity Interests extent the Administrative Agent or its counsel determines that, in light of any Unrestricted Subsidiarythe cost and expense associated therewith, 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, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instrumentsinstruments (including, without limitation, deposit account control agreements and securities account control agreements), 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Subsidiary Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Notwithstanding anything in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (including without limitation, this Section 5.11 or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial SubsidiariesSection 5.12) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the (i) no Foreign Subsidiary shall be a primary obligor or guarantor (pursuant to Article VII or otherwise) or pledgor of any assets or otherwise be responsible for, in each case, any Obligations incurred by or on behalf of any Loan Parties shall not be required to grant a security interest Party in any personal property of a type manner that would not constitute Pledged Collateral or Article 9 Collateral cause a Deemed Dividend Issue and (each as defined in the Guarantee ii) no Foreign Subsidiary which is and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 remains an Affected Foreign Subsidiary shall be liable hereunder for any of the Guarantee and Collateral AgreementLoans made to, or any other Obligations incurred on behalf of any Loan Party.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Lifetime Brands, Inc), Senior Secured Credit Agreement (Lifetime Brands, Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the U.S. Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Receivables Subsidiary or Business Securitization EntitiesSubsidiary) formed or acquired which becomes a Domestic Subsidiary after the Second Restatement Closing Date (other than any Subsidiary created pursuant to and solely for the purpose of Section 6.06(r)) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the U.S. Borrower has ceased to qualify as an Immaterial SubsidiarySubsidiary (other than any Subsidiary which ceases to qualify as an Immaterial Subsidiary pursuant to the Disposition permitted in Section 6.06(r)), to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Documents, to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and the Security Agreement, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Amendment Agreement (MPBP Holdings, Inc.), Amendment Agreement (Aramark Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Domestic Subsidiary that is or becomes a Loan Party shall shall, unless the Administrative Agent otherwise consents, cause (i) each Domestic Subsidiary of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) Holdings formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D N hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder by executing and delivering a Guaranty and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the U.S. owned by any Loan Party by executing and delivering Collateral Documents.
(b) Holdings, the Borrower The Borrowers and each Domestic Subsidiary that is or becomes a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign SubsidiarySubsidiaries, (yii) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests of each of its Foreign Subsidiaries (or such greater percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) 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)iii) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the a Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents Collateral Documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, howeverat any time after an Event of Default has occurred and is continuing, this paragraph (b) shall not require each Loan Party will, upon the Borrower or any request of the Administrative Agent, cause each Foreign Subsidiary to become a Loan Party and to grant a security interest in (i) any Equity Interests of a Subsidiary Liens to the extent a pledge Administrative Agent on its assets and have the balance of such Equity Interests in favor of its stock pledged to the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned Equity Interests and any real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Domestic Subsidiary that is or becomes a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and any Collateral Agreement Document that become subject to the Lien in favor of the Administrative Agent under any Collateral Document upon acquisition thereof), the Borrower Representative will notify the Agent and the Lenders thereofAdministrative Agent, and, if requested by the Agent or the Required LendersAdministrative Agent, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries such Domestic Subsidiary 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Smith & Wesson Holding Corp), Credit Agreement (Smith & Wesson Holding Corp)
Additional Collateral; Further Assurances. (a) Subject in all cases to the timing requirements in Section 5.11(c), and subject to applicable law, Holdings, the Borrower will, and will cause each Subsidiary that is a Loan Party shall Guarantor to cause (i) each of its Domestic and their respective wholly-owned Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesany Excluded Foreign Subsidiary) formed or acquired after the Second Restatement Acquisition Effective Date and (ii) any such Domestic Subsidiary that was or which ceases to be an Unrestricted Subsidiary, an Immaterial Subsidiary butor an Excluded Foreign Subsidiary (within thirty days after such formation or acquisition, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as or determination that such Subsidiary is no longer an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, to become a Loan Party within 20 Business Days (or such later date longer period as may be agreed to by the Administrative Agent) (A) to duly execute and deliver to the Administrative Agent an assumption agreement substantially in its sole discretion) by executing a Joinder Agreement in substantially the form of Annex 1 to the Guarantee and Collateral Agreement, (B) to execute and deliver such amendments, supplements or documents of accession to any other Collateral Documents, or such new Collateral Documents, as the Collateral Agent deems necessary for such Restricted Subsidiary to grant to the Collateral Agent (for the benefit of the Secured Parties) a perfected first priority security interest (subject to (x) Permitted Liens to the extent any such Permitted Liens would have priority over the Liens in favor of the Collateral Agent by operation of any applicable law and (y) liens subject to the Intercreditor Agreements, which will be subject to the provisions thereof and have only the priority set forth therein) in the Collateral described in such Collateral Document with respect to such new Restricted Subsidiary or such Restricted Subsidiary that ceases to be an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, as Exhibit D hereto applicable, (C) to deliver to the “Joinder Agreement”)Administrative Agent with respect to each Material Real Property, any existing title reports, abstracts or environmental assessment reports, to the extent in the possession or control of the Borrower; provided, however, that there shall be no obligation to deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Person other than the Borrower or one of its Subsidiaries and (D) to deliver to the Administrative Agent such opinions, documents and certificates referred to in Section 4.01 as may be reasonably requested by the Administrative Agent. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Collateral Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party the Borrower will, and will cause each Subsidiary that is a Loan Party Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and 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 Intellectual Property Security Agreements and other documents and such other actions or other deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)4.01), which may be required by law or which the Administrative Agent or the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof). In addition, the Borrower will, and will notify cause each Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Lenders thereof, and, if requested Collateral Agent filings with any governmental recording or registration office in any jurisdiction or office required by the Collateral Documents in order to perfect or protect the Liens of the Collateral Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan Parties.
(ec) IfWithout limiting the foregoing, at any time and from time (x) with respect to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shalleach Real Estate Asset listed on Schedule 1.01(c), not later than 45 120 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Acquisition Effective Date (or such later date longer period as agreed to by the Administrative Agent may agree in its sole reasonable discretion) and (y) with respect to (A) the acquisition by any Loan Party of Material Real Property or (B) the formation or acquisition of a Restricted Subsidiary which owns any Material Real Property, or determination that a Subsidiary which owns any Material Real Property is no longer an Unrestricted Subsidiary, an Immaterial Subsidiary or an Excluded Foreign Subsidiary, not later than 120 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) following the later of (I) the Acquisition Effective Date, and (II) the date of such acquisition, formation or determination, the Borrower will, and will cause the applicable Subsidiary Guarantor to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent and the Collateral Agent with respect to each such Real Estate Asset (each, a “Mortgaged Property”): (i) a Mortgage duly authorized and executed, in proper form for recording in the recording office of each jurisdiction where such Mortgaged Property to be encumbered thereby is situated in favor of the Collateral Agent, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in the reasonable judgment of the Collateral Agent) to create and/or maintain a first priority Lien (subject to (x) Permitted Liens to the extent any such Permitted Liens would have priority over the Liens in favor of the Collateral Agent by operation of any applicable law and (y) liens subject to the Intercreditor Agreements, which will be subject to the provisions thereof and have only the priority set forth therein) on such Mortgaged Property subject to Permitted Liens; (ii) fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (the “Mortgage Policies”), cause one or more such Domestic Restricted Subsidiaries in amounts not less than 125% of the fair market value of the Mortgaged Property, issued, coinsured and reinsured by title insurers reasonably acceptable to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries areand reasonably required by the Collateral Agent, individually, Immaterial Subsidiaries) such that insuring the foregoing condition ceases Mortgages to be true.
valid first and subsisting Liens on the property described therein, free and clear of all defects (fincluding, but not limited to, mechanics’ and materialmen’s Liens) Notwithstanding any provision and encumbrances, other than Permitted Liens, and providing for such other standard and customary affirmative insurance and endorsements (including endorsements for future advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for zoning of the Loan Documents applicable property); (iii) either (x) American Land Title Association/American Congress on Surveying and Mapping form surveys or such other forms of surveys as are reasonably acceptable to Collateral Agent dated no more than 90 days before the later of the Acquisition Effective Date or the date of such acquisition, formation or determination, as applicable (or such other dates as shall be reasonably acceptable to the contraryCollateral Agent), certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent, or (y) in lieu of such aforementioned surveys, such affidavits, certificates, information, and/or instruments of indemnification as may be reasonably acceptable to the title companies issuing the Mortgage Policies in order to issue the applicable Mortgage Policies in accordance with this Section 5.11(c); (iv) policies or certificates of insurance of the type required by Section 5.09; (v) evidence of flood insurance required by Section 5.09, in form and substance reasonably satisfactory to Collateral Agent; and (vi) opinions of local counsel for the Loan Parties shall not be required in states in which the Mortgaged Properties are located, with respect to grant a security interest the enforceability and validity of the Mortgages and any related fixture filings and other customary opinions reasonably requested by the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent. Notwithstanding anything to the contrary in this Section 5.11(c), so long as the 2018 and 2023 Note Indenture is in effect, the amount of the Secured Obligations secured by any personal property Principal Property or stock or indebtedness of a type that would not constitute Pledged Collateral or Article 9 Collateral any Principal Subsidiary (each as defined in the Guarantee 2018 and Collateral Agreement2023 Notes Indenture as in effect on the date hereof) pursuant shall be automatically limited to Section 3.01 or Section 4.01 the maximum amount of the Guarantee Secured Obligations permitted to be secured by such Principal Property without violating the terms of the 2018 and Collateral Agreement2023 Notes Indenture and without giving rise to any obligation on the part of any Loan Party to ▇▇▇▇▇ ▇ ▇▇▇▇ on any of its assets to secure Indebtedness governed by or subject to the terms of the 2018 and 2023 Notes Indenture.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawPromptly, Holdingsand in any event within 30 days after the Borrower or any of its Restricted Subsidiaries acquires any asset or property, including any Real Property, which is not covered by the existing Security Documents, including, without limitation, any Capital Stock of any Restricted Subsidiary (the "ADDITIONAL COLLATERAL"), the Borrower will cause any newly acquired Restricted Subsidiary to execute a Subsidiary Guaranty, and each Subsidiary that is a Loan Party shall the Borrower will, and will cause (i) each of its Domestic Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)to, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased grant to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent Banks, security interests and the Lenders and each other Secured Party at mortgages in such time party to asset or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofproperty, in any property (subject to the limitations EXCEPT that, with respect to Equity Interests set forth any asset or property acquired in paragraph (b) of this Section 5.11 and a Permitted Business Acquisition, including any other limitations set forth in the Guarantee and Collateral Agreement) of Restricted Subsidiary so acquired, such Loan Party which constitutes Collateral, on such terms as may actions shall be required to be performed on or before the applicable Permitted Business Acquisition Closing Date (except as otherwise assented to by the Administrative Agent). Such security interests and mortgages shall be granted pursuant to documentation substantially the same as the Security Documents (the "ADDITIONAL SECURITY DOCUMENTS") reasonably satisfactory in form and substance to the Administrative Agent, including, without limitation, and if deemed desirable by the Administrative Agent, opinions of local counsel in any jurisdictions in which such asset or property is located, and shall constitute valid and enforceable perfected security interests superior to and prior to the rights of all third Persons and subject to no other Liens except Permitted Encumbrances at the time of perfection thereof. The Additional Security Documents or other instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the Liens in favor of the Administrative Agent for the benefit of the Banks required to be granted pursuant to the terms of the Collateral DocumentsAdditional Security Documents and all taxes, fees and other charges payable in connection therewith shall have been paid in full.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Restricted Subsidiaries to, execute at its own expense, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such vouchers, invoices, schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, real property surveys, reports and deliverother assurances or instruments and take such further steps relating to the Collateral covered by any of the Security Documents or the Additional Security Documents as the Administrative Agent may reasonably require. Furthermore, or the Borrower shall cause to be executed and delivered, delivered to the Administrative Agent such documentsopinions of counsel, 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 title insurance and other related documents and such other actions or deliveries as may be requested by the Administrative Agent to assure themselves that this Section 6.14 has been compiled with.
(c) At the request of the type required by Section 4.02Administrative Agent or the Required Banks, as the Borrower shall provide to the Administrative Agent appraisals satisfying applicable (including legal opinionsrequirements of FIRREA in respect of the Real Property of the Borrower and its Restricted Subsidiaries, Title Insurance Policiesif any, certificates and corporate and organizational documents)), which may be required by law or which the Agent mayconstituting Collateral, from time to time, in form and substance reasonably request satisfactory 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 the Loan PartiesAdministrative Agent.
(d) Subject to the limitations set forth or referred to in The Borrower agrees that each action required by this Section 5.116.14 shall be completed as soon as possible, but if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are such Collateral has been newly acquired by the Borrower or its Restricted Subsidiaries or is Collateral held by any newly acquired Restricted Subsidiary that is a Loan Party of the Borrower, in no event later than 30 days after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor date of the Agent upon acquisition thereof)of such Collateral; PROVIDED that with respect to any Collateral acquired in a Permitted Business Acquisition, each action required by this Section 6.14 with respect to such Collateral (including property of, or Capital Stock of, any newly acquired Restricted Subsidiary) shall be taken no later than the Borrower will notify the Agent and the Lenders thereofclosing of such Permitted Business Acquisition, and, if requested unless otherwise consented to by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan PartiesAdministrative Agent.
(e) If, at any time and from time to time after Following the Second Restatement Closing Date, Domestic the Borrower will, and will cause each of its Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise to, perform any and all acts and execute any and all documents (including, without limitation, the execution, amendment or modification of any financing statement and continuation statement) for filing in any appropriate jurisdiction under the aggregate more than 7.5% of Total Assets as provisions of the end UCC, local law or any statute, rule or regulation of any applicable jurisdiction which are necessary in order to maintain or confirm in favor of the most recently ended fiscal quarter Administrative Agent for the ratable benefit of the Borrower Banks a valid and perfected Lien on the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower Collateral and the Restricted Subsidiaries any Additional Collateral, subject to no Liens except for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Prior Liens and Permitted Encumbrances. The Borrower shall, not later than 45 days as promptly as practicable after the date by which financial statements for filing of any such quarter are required financing statements, deliver to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent acknowledgment copies of, or copies of lien search reports confirming the filing of, financing statements duly filed under the UCC of all jurisdictions as may be necessary or, in its sole discretion)the reasonable opinion of the Administrative Agent, cause one desirable to perfect the Lien created, or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases purported or intended to be truecreated, by each Security Document.
(f) Notwithstanding any provision The Borrower shall use its best efforts and shall cause each of its Restricted Subsidiaries to use their best efforts, to obtain an executed Landlord Certification and Waiver with respect to each lease of Real Property entered into by Credit Party after the Loan Documents to the contraryClosing Date; PROVIDED that, the Loan Parties Borrower shall not be required to grant a security interest in any personal property take actions or incur costs which are commercially unreasonable with respect to such leases of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined Real Property which, in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 reasonable judgement of the Guarantee Administrative Agent, are not material to the business of the Borrower and Collateral Agreementits Restricted Subsidiaries taken as a whole, in order to obtain such Landlord Certification and Waivers.
Appears in 2 contracts
Sources: Credit Agreement (Color Spot Nurseries Inc), Credit Agreement (Color Spot Nurseries Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsIn connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report delivered in connection therewith and each Subsidiary the list of current Mortgaged Properties (as described in Section 5.15(c)(vi)) to ascertain whether the Mortgaged Properties represent at least 85% of the total PV-9 of the Borrowing Base Properties evaluated in such Reserve Report. In the event that is a Loan Party the Mortgaged Properties do not represent at least 85% of such total PV-9, then the Borrower shall, and shall cause the other Loan Parties to, grant, on or prior to the earlier of (i) each sixty (60) days after delivery of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ethe certificate required under Section 5.15(c) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of thirty (30) days after the end of the most recently ended fiscal quarter of Administrative Agent notifies the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days that the Mortgaged Properties do not represent at least 85% of such total PV-9 (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent as security for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property Obligations a first priority Lien (subject to the limitations with respect Permitted Mortgaged Property Liens) on additional Oil and Gas Properties not already subject to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms a Lien of the Collateral Documents such that after giving effect thereto, the Mortgaged Properties will represent at least 85% of such total PV-9. All such Liens will be created and perfected by and in accordance with the Collateral Documents, including, if applicable, any additional Mortgages.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willthe Borrower shall, and will shall cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and agreements, instruments, forms and notices 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 serving notices of assignment and such other actions or deliveries of the type required by by
Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), 4.01) which may be required by law Requirements of 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Southwestern Energy Co)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingsthe Borrowers shall cause each US Subsidiary (other than any Immaterial Subsidiary, the Borrower any Non-Wholly Owned Subsidiary, any FSHCO and any Subsidiary of a Foreign Subsidiary) and each Canadian Subsidiary that is of a Loan Party shall cause (i) each of its Domestic Subsidiaries Canadian Borrower (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11or any Non-Wholly Owned Subsidiary), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days five days (or such later date longer period as may be agreed to by the Administrative Agent Agent) of formation or acquisition of such Subsidiary, re-designation of such Subsidiary as a Restricted Subsidiary, or such Subsidiary ceasing to be an Immaterial Subsidiary, a FSHCO or a Non-Wholly Owned Subsidiary, in its sole discretioneach case after the Third Restatement Date, (A) to become a US Loan Party or Canadian Loan Party, as applicable, by executing and delivering to the Administrative Agent a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the each a “Joinder Agreement”) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such new Restricted Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such Restricted Subsidiary. The Borrower may elect to cause any Puerto Rican Subsidiary to become a Puerto Rican Loan Party by such Puerto Rican Subsidiary executing and delivering to the Administrative Agent a Joinder Agreement or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and such Puerto Rican Subsidiary executing and delivering such Collateral Documents or amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent deems necessary for such new Restricted Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in substantially all assets of such Puerto Rican Subsidiary (with exceptions substantially consistent with exceptions set forth in other Collateral Documents or as otherwise required by Requirements of Law). Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Guarantor and Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent (in each case for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral. For the avoidance of doubt, on such terms as may be required it is understood that to the extent the assets of any Restricted Subsidiary becoming a Loan Party pursuant to this Section 5.14 are to be included in any Borrowing Base, due diligence in respect of such assets satisfactory to the terms of the Collateral DocumentsAdministrative Agent, in its Permitted Discretion, shall have been completed prior to such inclusion.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject . In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the limitations set forth Administrative Agent filings with any governmental recording or referred to registration office in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired jurisdiction required by the Borrower Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or any Subsidiary that is a Loan Party after protect the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor Liens of the Administrative Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described granted under any Collateral Document in paragraph (c) of this Section, all any Intellectual Property at the expense of the Loan PartiesLenders.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Second Amendment (ODP Corp), Credit Agreement (Office Depot Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingslaw and the limitations expressly set forth in this Agreement and the Collateral Documents, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Closing Date and (iiincluding, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days on or prior to the earlier to occur of (i) the date that is 30 days following the date of such formation or acquisition and (ii) the next date a Compliance Certificate is required to be delivered following the date of such formation or acquisition (including, without limitation, upon the formation of any Subsidiary resulting from a division of a limited liability company) (or, in either case, such later date as agreed may be acceptable to by the Administrative Agent Lender in its sole discretion) ), by executing (i) a Joinder Agreement in substantially the form set forth attached as Exhibit D B hereto (the “Joinder Agreement”), (ii) a Security Agreement Joinder Agreement or such other customary supplements or joinders to the other applicable Collateral Documents or new security or collateral documents in the United States, in each case to create Liens over its assets of scope substantially similar to the Liens granted pursuant to the Collateral Documents executed on the Closing Date or pursuant to Section 5.13, (iii) the Global Intercompany Note and (iv) such other documentation as the Lender may reasonably request and that is contemplated by the terms hereof (including, for the avoidance of doubt, documents contemplated by clause (c) of this Section 5.10) or of the applicable Collateral Documents, together with such customary closing certificates, evidences of authority and good standing and legal opinions as the Lender may reasonably request. Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or take such actions as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent may be required by the terms thereof, hereof or of the applicable Collateral Documents to grant and perfect Liens to the Lender in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 herein and any other limitations set forth in the Guarantee and Collateral Agreementother Loan Documents) of such Loan Party which constitutes Collateral, on such terms as are required pursuant to the terms of the Collateral Documents and in such priority as may be required pursuant to the terms of the Collateral Documentsany Acceptable Intercreditor Agreement.
(b) Holdings, the Borrower and each Subsidiary that is a other Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more other than 65% of the any Capital Stock of a Foreign Subsidiary and/or (zconstituting an Excluded Asset) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party them to be subject at all times to a first priority First Priority perfected Lien in favor of the Agent Lender pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; providedof, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary and to the extent a pledge of such Equity Interests in favor of required by, the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Documents.
(c) Without limiting the foregoing, subject to any Acceptable Intercreditor Agreement and the limitations expressly set forth in this Agreement and the Collateral Documents, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the Agent Lender such documents, agreements (including, for the avoidance of doubt, deposit account and securities account control agreements to the extent required by the Collateral Documents) 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)5.14), which may be required by law or which the Agent Lender 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 (to the extent required herein or therein), all at the expense of the Loan PartiesBorrower in accordance with Section 8.03(a).
(d) Subject to the limitations set forth or referred to in this Section 5.115.10, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under or any Real Estate Asset which becomes a Material Real Estate Asset after the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof)Closing Date, the Borrower will promptly notify the Agent and the Lenders thereofLender, and, if requested by the Agent Lender in its sole discretion, within 75 days of such request (or such longer period as may be acceptable to the Required Lenders, Lender) the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party to take, such actions as shall be necessary or reasonably requested by the Agent Lender to grant and perfect such Liens, including actions described in paragraph clause (c) of this SectionSection 5.10, all at the expense of the Borrower in accordance with Section 8.03(a). The Loan PartiesParties shall within 75 days following a request by the Lender (or such longer period as the Lender may agree) cause the Mortgages on each such Material Real Estate Asset acquired by any Loan Party, or which becomes a Material Real Estate Asset, after the Closing Date to be executed, delivered and recorded and in connection therewith deliver corresponding UCC fixture filings, financing statements and filings in applicable land registry offices (to the extent required), flood hazard determinations and if required, evidence of flood insurance, title insurance policies (including any customary endorsements thereto), surveys, local counsel opinions and other documentation, in each case, that the Lender shall reasonably require.
(e) If, at After any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition Subsidiary ceases to be trueconstitute an Excluded Subsidiary in accordance with the definition thereof, Holdings shall cause such Subsidiary to take all actions required by this Section 5.10 (within the time periods specified herein) as if such Subsidiary were then formed or acquired.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Secured Seller Note Agreement (American Water Works Company, Inc.), Secured Seller Note Agreement (American Water Works Company, Inc.)
Additional Collateral; Further Assurances. (a) Subject To the extent required by Section 5.14(f) below, but subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement within thirty (ii30) any days (or such Domestic Subsidiary that was an Immaterial Subsidiary but, as of longer period the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent shall approve in writing) after such formation or acquisition to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially (or such other documents performing similar functions as may be required by the form set forth Administrative Agent). In connection therewith, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act and Canadian AML Legislation. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the AgentAdministrative Agent or the Australian Security Trustee (as applicable), for the benefit of the Agent Administrative Agent, the Australian Security Trustee and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documentsincluding any Material Real Property.
(b) HoldingsTo the extent so owned, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent or the Australian Security Trustee (oras applicable) for the benefit of the Administrative Agent, the Australian Security Trustee and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided that if the Borrower, in good faith consultation with the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any Administrative Agent, reasonably determines that such Domestic Subsidiary, a “DRE”) that holds more than 65% of security interest in the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock Equity Interests of a Foreign Subsidiary and/or (zother than a Loan Party) any Domestic Subsidiary described would result in clause (B)material adverse tax consequences, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled then such pledge may be limited 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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryParty.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party and Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent or the Australian Security Trustee (as applicable) such documents, agreements and instruments, and will take or cause to be taken such further actions (including the delivery of legal opinions, 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(d) Subject With respect to all owned Material Real Property owned by a Loan Party that is acquired after the Effective Date or that becomes Material Real Property after the Effective Date, the Loan Parties shall within sixty (60) days thereafter (or such later date as approved by the Administrative Agent), deliver each of the following, in form and substance reasonably satisfactory to the limitations set forth Administrative Agent:
(i) a Mortgage on such property;
(ii) evidence that a counterpart of the Mortgage has been recorded in the place necessary, in the Administrative Agent’s reasonable judgment, to create a valid and enforceable first priority Lien in favor of the Administrative Agent for the benefit of itself and the Secured Parties, subject to Permitted Encumbrances;
(iii) ALTA or referred other mortgagee’s title policy;
(iv) an ALTA survey prepared and certified to the Administrative Agent by a surveyor reasonably acceptable to the Administrative Agent;
(v) an opinion of counsel in this Section 5.11the state in which such Material Real Property is located in form and substance and from counsel reasonably satisfactory to the Administrative Agent;
(vi) if any such parcel of Material Real Property is determined by the Administrative Agent to be in a flood zone, if a flood notification form signed by the Borrower and evidence that flood insurance is in place for the building and contents, all in form and substance satisfactory to the Administrative Agent;
(vii) such other information, documentation, and certifications as may be reasonably required by Administrative Agent.
(e) If any material assets (including any owned real property Material Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, to the Borrower will extent not constituting Excluded Assets (as defined in the Security Agreement), cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(ef) IfThe Borrower will ensure that the Guarantors will:
(i) at all times, own, in aggregate, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5least 85% of the Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; and
(ii) beginning with the Restricted Subsidiaries or more than 7.5first full fiscal quarter ending after the Effective Date, generate at least 85% of Consolidated the EBITDA of the Borrower and its Subsidiaries in respect of each 6-month period ending on last day of each fiscal quarter. A failure to comply with Section 5.14(f) at any time will not constitute an Event of Default if any Subsidiary that is not a Guarantor becomes a Guarantor by satisfying the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 requirements set forth Section 5.14 within thirty (30) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by longer period the Administrative Agent shall approve in its sole discretion)writing) of such formation or acquisition and, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contraryas a result, the Loan Parties shall not be required to grant a security interest in any personal property requirements of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral AgreementSection 5.14(f) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementare satisfied.
Appears in 2 contracts
Sources: Credit Agreement (F45 Training Holdings Inc.), Credit Agreement (F45 Training Holdings Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Loan Party will cause each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement (and is not an Excluded Subsidiary), that becomes a Restricted Subsidiary after the date hereof (iiand is not an Excluded Subsidiary) any such Domestic or that ceases to be an Excluded Subsidiary that was an Immaterial Subsidiary butafter the date hereof in accordance with the terms of this Agreement within sixty (60) days (in each case, as of such time may be extended in the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent’s sole discretion) to become a Loan Party within 20 Business Days (Borrower or such later date as agreed a Guarantor pursuant to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially and take all such further actions (including authorizing the form set forth as Exhibit D hereto (filing and recording of financing statements, fixture filings, and other documents) that are required under the “Joinder Agreement”)Collateral Documents or this Agreement to cause the Collateral and Guaranty Requirement to be satisfied with respect to such Subsidiary. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Borrower or Guarantor, as applicable hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may under the Security Agreement. With respect to any Excluded Subsidiary formed or acquired after the date of this Agreement and the Equity Interests of which are directly owned by a Loan Party and required to be required pledged to the Administrative Agent pursuant to the terms Security Agreement, the applicable Loan Party shall, within sixty (60) days (in each case, as such time may be extended in the Administrative Agent’s sole discretion) of the Collateral Documentsformation or acquisition of such Excluded Subsidiary notify the Administrative Agent thereof.
(b) Holdings, the Borrower The Loan Parties will execute any and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent such further documents, agreements and instruments, and will take or cause to be taken all such further actions (including authorizing 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), ) which may be required by law any Requirement of Law or which the Administrative Agent may, from time to time, reasonably request request, to carry out cause the terms Collateral and conditions of this Agreement and the other Loan Documents and to ensure perfection and priority of the Liens created or intended Guaranty Requirement to be created by the Collateral Documents, and remain satisfied at all at the expense of the Loan Partiestimes.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Big Lots Inc), Credit Agreement (Big Lots Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsRequirement of Law, the Borrower Borrowers and each of their Restricted Subsidiaries will cause each Material Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), not an Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and any Person (other than an Unrestricted Subsidiary) that otherwise becomes a Material Domestic Subsidiary after the date of this Agreement to become either (i) a Loan Guarantor or (ii) any a Loan Guarantor and a Borrower, as elected by the Borrowers, by executing a Joinder Agreement and an assumption agreement to the applicable Security Agreement in substantially the form attached as an annex thereto within thirty (30) days of such formation or acquisition or of such Person otherwise becoming a Material Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (iA) shall automatically become either (x) a Loan Party Guarantor or (y) a Loan Guarantor and a Borrower, as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiB) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral; provided that if such Person is to become a Borrower, on such terms as may be required pursuant to the terms requirements of the Collateral DocumentsSection 5.17 shall have been satisfied.
(b) HoldingsSubject to the Intercreditor Agreement, the Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orother than subsidiaries of CSI Compressco LP) owned by such U.S. Loan Party and (ii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) 's U.S. parent and (ii2) 65% could not reasonably be expected to cause any material adverse tax consequences) 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 Foreign Subsidiary directly owned by the Borrower any U.S. Loan Party or any Subsidiary that is a Loan Party of their Domestic Subsidiaries (other than subsidiaries of CSI Compressco LP), in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting [Reserved].
(d) Subject to the foregoingIntercreditor Agreement (and in the case of a UK Borrower the Collateral Documents to which it is a party), each Loan Party will, and will cause each Subsidiary that is a Loan Party of its Restricted Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(de) Subject To the extent any real property is included in the Collateral, each Loan Party will, and will cause each Subsidiary to, execute and/or deliver, as applicable, such other documents as the Administrative Agent may reasonably request on behalf of any Lender that is a regulated financial institution or any Affiliate of such a Lender (each, a “Regulated Lender Entity”), in each case, to the limitations set forth extent such other documents are required for compliance by such Regulated Lender Entity with applicable law with respect to flood insurance diligence, documentation and coverage under all applicable Flood Laws. Prior to signing by the Loan Parties of any mortgage or referred deed of trust (other than any Collateral Document to which a UK Borrower is a party) to secure the Secured Obligations, the applicable Loan Parties and the Administrative Agent shall have provided each Regulated Lender Entity requesting the same a copy of the life of loan flood zone determination relative to the property to be subject to such mortgage or deed of trust delivered to the Administrative Agent and copies of the other documents required by any such Regulated Lender Entity as provided in this Section 5.11the preceding sentence and shall have received confirmation from each Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, if conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity).
(f) If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000and any other Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and a Security Agreement or any other Collateral Agreement Document that become subject to the Lien in favor of the Agent under a Security Agreement or such other Collateral Document upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the applicable Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (cd) of this SectionSection 5.14, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(fg) Notwithstanding any provision in any of the Loan Documents to the contrary, the Loan Parties in no event shall not (i) any Collateral owned by any UK Borrower be required deemed to grant constitute collateral security for, or (ii) any UK Borrower be deemed to be a security interest guarantor or other surety of, in either case, any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementU.S. Secured Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Tetra Technologies Inc), Credit Agreement (Tetra Technologies Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 1.956-1.956- 2(c)(2)) in each Foreign Subsidiary (other than an Immaterial Foreign Subsidiary) and Foreign Holdco directly owned by the Borrower Borrowers or any Subsidiary that is a such Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Domestic Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably acceptable to the Administrative Agent and all at the expense of the Loan Parties. Notwithstanding anything to the contrary, so long as the stock certificates of AMP Media Systems, Inc. are maintained in electronic form on Carta (or other similar service), the Loan Parties shall not be required to deliver such certificates (or stock powers or control agreements as to such certificates) to the Administrative Agent.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those or any interest therein, with respect to fee-owned real property, individually, or in the aggregate, having a fair market value in excess of at least $5,000,0001,000,0002,500,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than (i) Excluded AssetsCollateral, and (ii) assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Parent Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Pattern Group Inc.), Credit Agreement (Pattern Group Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days thirty (30) days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a Joinder Agreement joinder agreement substantially in substantially the form set forth as of Exhibit D hereto C (the a “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within thirty (ii30) will simultaneously therewith days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower Borrower, each Loan Party and each other direct Material Domestic Subsidiary that is of a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its direct Domestic Subsidiaries and (or, in the case of (Aii) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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 of each of its direct Foreign Subsidiaries to vote (within be subject at all times to a first priority, perfected Lien in favor of the meaning Administrative Agent pursuant to the terms and conditions of Treas. Reg. Section 1.956-2(c)(2)) the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, in the case of a Foreign Subsidiary Holding Company or a Foreign Subsidiary that is a CFC, such Domestic Subsidiary) and (ii) Lien shall be limited to 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 such Foreign Subsidiary directly owned by the Borrower Holding Company or any Foreign Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph CFC (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or including any Subsidiary that would be entitled to such becomes a security interest would require separate financial statements of a Subsidiary to be filed with CFC after the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawEffective Date), rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryas applicable.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties. Notwithstanding the foregoing no Loan Party shall be required (i) to take any such action if the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof is excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (ii) to authorize or file any document or registration in a jurisdiction located outside of the United States or (iii) to take any action with respect to any assets located outside of the United States.
(de) Subject From and after the Effective Date, in the event that any Loan Party acquires any Material Property, the Loan Parties shall, and shall cause each of their Subsidiaries to, deliver to the limitations set forth Administrative Agent, as soon as practicable, and in any event within ninety (90) days (or referred such later date as the Administrative Agent may agree), after the acquisition of such Material Property, fully executed and notarized Mortgages (each, an “Additional Mortgage”) in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering the interest of the applicable Loan Party in such Material Property, and customary legal opinions with respect to such Additional Mortgages, each in this Section 5.11form and substance reasonably satisfactory to the Administrative Agent and provided at the sole cost and expense of the Loan Parties. The Loan Parties shall deliver to the Administrative Agent within sixty (60) days after the acquisition of such Material Property or after the determination that any other part of any Material Property includes a Building or Manufactured (Mobile) Home (each as defined in applicable Flood Laws) (or such later date as the Administrative Agent may agree), flood hazard certificates and, if any material assets such Building or Manufactured (including any owned real property or improvements thereto but excluding leasehold interestsMobile) (but only those having Home is located in a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary flood zone, executed flood determinations and evidence that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral all flood insurance required under the Guarantee applicable Flood Laws has been obtained, in form and Collateral Agreement that become subject substance reasonably satisfactory to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all provided at the sole cost and expense of the Loan Parties.
(ef) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 Within ninety (90) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Effective Date (or such later date as agreed to by the Administrative Agent may agree), the Borrower shall have delivered an executed Mortgage in favor of the Administrative Agent in its sole discretionrespect of each Material Property described on Schedule 5.09(f), cause one or more in proper form for recording, including full legal descriptions and street addresses, as applicable, in all appropriate places in all applicable jurisdictions, encumbering the interest of the applicable Loan Party in such Domestic Restricted Subsidiaries Material Property, and customary legal opinions with respect to become additional such Mortgages, in each case in form and substance reasonably satisfactory to the Administrative Agent and provided at the sole cost and expense of the Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueParties.
(fg) Notwithstanding any provision Within sixty (60) days after the Effective Date (or such later date as the Administrative Agent may agree), the Borrower shall have delivered to the Administrative Agent a certificate executed by an officer of the Loan Documents to Borrower providing the contrary, the Loan Parties shall not be required to grant a security interest in any personal property address or legal description of a type that would not constitute Pledged Collateral each Building or Article 9 Collateral Manufactured (Mobile) Home (each as defined in applicable Flood Laws) to be included in the Guarantee Mortgages and, if any such Building or Manufactured (Mobile) Home is located in a flood zone, executed flood determinations and Collateral Agreement) pursuant evidence that all flood insurance required under applicable Flood Laws has been obtained, in form and substance reasonably satisfactory to Section 3.01 or Section 4.01 the Administrative Agent and provided at the sole cost and expense of the Guarantee Loan Parties.
(h) As promptly as practicable, and Collateral Agreementin any event within the time periods after the Effective Date specified in Schedule 5.09(h) (or such later date as the Administrative Agent may agree), the Borrower shall deliver, or cause to be delivered, the documents or take the actions specified on Schedule 5.09(h).
Appears in 2 contracts
Sources: Credit Agreement (Medifast Inc), Credit Agreement (Medifast Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the each Borrower and each Subsidiary that is a U.S. Loan Party shall cause (i) each of its the Domestic Subsidiaries and each of the First-Tier Foreign DREs (other than any Immaterial Subsidiary Investments in Persons that are permitted to be made pursuant to Sections 6.04(c)(ii) and (except as otherwise provided in paragraph (e) of this Section 5.11iii), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a U.S. Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, Lender Parties in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such U.S. Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its the Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign SubsidiarySubsidiaries, (yii) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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 of each of the First-Tier Foreign DREs, (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (iiiii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary, (within iv) 100% of the meaning non-voting Equity Interests of Treas. Reg. Section 1.956each First-2(c)(2)Tier Foreign Subsidiary, and (v) 309/476 of the Equity Interests constituting the total combined classes of Equity Interests entitled to vote, and 100% of the issued and outstanding non-voting Equity Interests, of the Canadian Borrower (it being understood that all such Equity Interests described in this clause (v) shall be pledged by ▇▇▇▇▇ Canada LP and not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)by ▇▇▇▇▇ Canada GP) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent (for the benefit of the U.S. Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request, provided, however, that (i) if the Canadian Borrower issues additional Equity Interests that are entitled to vote, ▇▇▇▇▇ Canada LP agrees to promptly pledge to the Administrative Agent such additional number of whole limited partnership units of the Canadian Borrower equal to approximately (but not in excess of) 65% of such additional limited partnership units that are so issued and (ii) none of the Equity Interests of ▇▇▇▇▇▇ ▇▇▇ IP Company LLC shall be subject to such Lien so long as 100% of the Equity Interests of ▇▇▇▇▇▇ ▇▇▇ IP Company LLC are not owned by one or more U.S. Loan Parties. The Borrowers agree if (a) the Administrative Agent notifies the Borrower Representative that as a result of a change in law there is a reason to believe that a pledge of a greater percentage of any First-Tier Foreign Subsidiary’s voting Equity Interests or a guarantee by any First-Tier Foreign Subsidiary of the Guaranteed Obligations would not result in a “deemed dividend” under Section 956 of the Code and (b) subsequent to the receipt of such notice the Borrower Representative reasonably determines (which determination the Borrower Representative agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Administrative Agent) that a pledge of more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such First-Tier Foreign Subsidiary or a guarantee by such First-Tier Foreign Subsidiary of the Guaranteed Obligations would not result in such a “deemed dividend” or any other tax liability to the Borrowers, the applicable Borrower will promptly pledge such greater percentage of the voting Equity Interests of each such First-Tier Foreign Subsidiary and cause each such First-Tier Foreign Subsidiary to provide a guarantee of the Guaranteed Obligations, in each case to the extent that the foregoing would not result in such a “deemed dividend” under Section 956 of the Code or other tax liability to the Borrowers. Table of Contents
(c) Subject to applicable law, the Canadian Borrower and each other Canadian Loan Party shall cause each of their Subsidiaries that is organized under the laws of Canada or any province thereof (other than those Persons in which Investments are made pursuant to Section 6.04(c)(ii) and (iii)) to become party to a guarantee agreement that guarantees repayment of the Canadian Obligations (which guarantee agreement shall be in substantially the form of the Canadian Guarantee referred to in clause (a) of the definition thereof) and a security agreement (which shall, among other things, pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest in all the personal property of each such Subsidiary, the foregoing to be in a form substantially similar to General Security Agreement, the Securities Pledge Agreement and, if any of such assets is located in the Province of Quebec, the Deed of Hypothec, in each case as the foregoing are referred to in the definition of “Canadian Security Agreement”) that secures repayment of the Canadian Obligations, together with such other documentation and filings that the Administrative Agent may reasonably require in order to perfect its first priority security interest in the assets subject to the terms of such Security Agreement; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests that so long as 100% of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryGRI are not owned by one or more Loan Parties, none of the Equity Interests of GRI shall be subject to such Lien.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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, hypothecs, fixture filings, mortgages, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each Subsidiary that is of its domestic Subsidiaries to become or remain a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except and either a Guarantor or a Borrower under the Credit Agreement, as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date required by Agent and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary butcause, as on the date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days creation (or such later date as agreed the Agent may agree), each of its domestic Subsidiaries formed or acquired after the Closing Date in accordance with the terms of this Agreement to by the Administrative Agent in its sole discretion(A) (1) become a party to this Agreement by executing a Joinder Agreement if such Subsidiary is to become a Guarantor, and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty if such Subsidiary is to become a Guarantor, or (B) become a party to this Agreement by executing, among other things, an amendment and/or joinder agreement in substantially form and substance satisfactory to Agent if such Subsidiary is to become a Borrower.
(b) Each Loan Party shall and upon the date of creation of any new domestic Subsidiary (or such later date as the Agent may agree), such Subsidiary shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Loan Party which constitutes Collateral (provided that with respect to any fee ownership interest in real Property, Agent shall only be entitled to a negative pledge against such real Property (subject to Permitted Liens), in form set forth and substance acceptable to Agent, but not a mortgage or deed of trust), and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Sections 4.1(b), (c), (d), (f), (q) and (r) of the Original Credit Agreement (as Exhibit D hereto (applicable and including lien searches and the “Joinder Agreement”filing of financing statements). Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a 6.15.2. Each Loan Party will cause (on the date of creation of a new Subsidiary) (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries and (orii) 65% (or such greater percentage that, due to a change in an applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, ’s U.S. parent and (y2) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (zcould not reasonably be expected to cause any material adverse tax consequences) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and outstanding Equity Interests Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided. If at any time all or any part of a Loan Party’s Capital Stock has been pledged to the Agent, however, this paragraph (b) that Loan Party shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor issue additional Capital Stock without Agent’s prior written consent. Agent and Lenders acknowledge that as of the Agent or Closing Date, Borrower has not pledged and has not been required to secure pledge any debt securities of the Borrower or any Subsidiary that would be entitled its Capital Stock to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAgent.
(c) 6.15.3. Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Borrower’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
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Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Loan Parties will, Holdingsunless the Required Lenders otherwise consent, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic their Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesNon-U.S. Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed by executing this Agreement through a joinder agreement in form and substance reasonably satisfactory to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic domestic Subsidiaries to be subject at all times to a first priority, perfected Lien (or, subject to Permitted Encumbrances) in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% favor of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% Collateral Agent pursuant to the terms and conditions of the Capital Stock of a Foreign Subsidiary and/or Loan Documents or other security documents as the Collateral Agent shall reasonably request, and (zii) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock 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)) of such Domestic Subsidiary) and (ii) 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 Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Non-U.S. Subsidiary directly owned by the any Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Collateral Agent shall reasonably request; providedprovided that if, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant as a security interest in (i) any Equity Interests result of a Subsidiary to change in applicable law after the extent date hereof, a pledge of a greater percentage than 65% of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) could not reasonably be expected to cause (1) undistributed earnings of such Equity Interests Non-U.S. Subsidiary (as determined for federal income tax purposes) to be treated as a deemed dividend to such Non-U.S. Subsidiary’s domestic parent or (2) other material adverse tax consequences, then the Borrowers will take steps to cause such greater percentage to be subject to a first priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Agent.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is subsidiary of a Loan Party which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent Agents such documents, agreements documents and instrumentsagreements, 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the any 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, including but not limited to ensure perfection and priority all items of the Liens created or intended to be created type required by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement(as applicable).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Required Lenders otherwise consent, except as otherwise permitted hereunder (i) cause each Subsidiary of the Borrower and each Subsidiary that is (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each Subsidiary of the Borrower (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Closing Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a the Joinder Agreement in substantially the form set forth as Exhibit D EXHIBIT F hereto (the “Joinder Agreement”"JOINDER AGREEMENT"), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty and enter into a Security Agreement granting to the Agent, for the benefit of the Lenders, a first priority security interest in all of its personal property. Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(iib) will simultaneously therewith or as soon as practicable thereafter Upon the request of the Agent, each Loan Party shall (i) grant Liens to the Agent, for the benefit of the Agent and the Lenders Lenders, pursuant to such documents as the Agent may reasonably deem necessary and each other Secured Party at deliver such time party property, documents, and instruments as the Agent may request to or benefiting from perfect the Guarantee and Collateral Agreement to Liens of the extent required by the terms thereof, Agent in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party which constitutes Collateral, on such terms and (ii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the type required by Section 4.1 (as may applicable). Notwithstanding the foregoing, the Borrower shall not be required pursuant to grant mortgages to the terms of Agent and the Collateral DocumentsLenders on their real Property (other than those granted on the Closing Date) so long as the Availability exceeds $25,000,000. If, at any time, the Availability falls below $25,000,000, the Agent, in the Agent's sole and absolute discretion, shall have the right to require perfected, first priority mortgage liens on the Borrower's real Property at the Borrower's sole cost and expense.
(bc) Holdings, the Borrower and each Subsidiary that is a Loan Party The Parent will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided. Upon the occurrence and at all times during the existence of an Event of Default under this Agreement, howeverthe Borrower shall, this paragraph upon the request of Agent, in its sole and absolute discretion, cause (bi) shall 100% of the issued and outstanding Capital Stock of each of its Domestic Subsidiaries and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the date hereof, (1) could not require reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) of the issued and outstanding Capital Stock entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) and 100% of the issued and outstanding Capital Stock not entitled to vote (within the meaning of Treas. Reg.
Section 1. 956-2(c)(2)) in each first-tier Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary to grant be subject at all times to a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or pursuant to secure any debt securities the terms and conditions of the Borrower Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarydocuments.
(cd) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Borrower's Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Agent and the Required Lenders 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
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Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdingsas promptly as possible but in any event not later than sixty (60) days following the date on which any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower (or the Administrative Agent as contemplated by the definition of “Material Domestic Subsidiary”) as, a Material Domestic Subsidiary, pursuant to the definition of “Material Domestic Subsidiary,” 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 each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial such Subsidiary (except as otherwise provided in paragraph (ex) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement and (y) to deliver to the Administrative Agent a joinder to the Security Agreement (in substantially the form set forth as Exhibit D hereto (contemplated thereby) pursuant to which such Subsidiary agrees to be bound by the “Joinder Agreement”)terms and provisions thereof, 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; provided, however, that no Domestic Subsidiary of a Foreign Subsidiary and no Domestic Subsidiary HoldCo shall be required to become a Loan Party hereunder. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and a “Grantor” under the Security Agreement (pursuant to the terms thereof) and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity capacities under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsThe Borrower will cause, and will cause each other Loan Party to cause, all of its owned property (whether personal, tangible, intangible, or mixed, but other than any Excluded Collateral) to be subject at all times to first priority, perfected Liens in favor of the Borrower Administrative Agent for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and each Subsidiary that is a conditions of the Collateral Documents, subject in any case to Liens permitted by Section 6.02. Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its directly owned Domestic Subsidiaries (or, in the case of (A) any other than Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (BHoldCos), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to CFC or Domestic US-DOCS\103717350.16 Subsidiary Holdco to, in each case, be subject at all times to a first priority priority, perfected Lien (subject to Liens permitted under Section 6.02) in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing, however, this paragraph (b) shall not require no such pledge agreement in respect of the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary CFC shall be required hereunder to the extent a the Administrative Agent or its counsel determines that such pledge of such Equity Interests in favor would not provide material credit support for the benefit of the Agent or Secured Parties pursuant to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawlegally valid, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiarybinding and enforceable pledge agreements.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(d) Subject in form and substance reasonably satisfactory to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawthe Term/ABL Intercreditor Agreement, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than except for any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereofEquity Interests constituting Excluded Assets, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries directly owned by such Loan Party (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary those described in clause (Biii) of this sentence), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary FSHCO or CFC directly owned by such Loan Party, and (iii) 65% of the Borrower issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each FSHCO or any Subsidiary that is a CFC directly owned by such Loan Party Party, in each case, to be subject at all times to a first priority perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably requestDocuments; provided, however, this paragraph in respect of clause (biii) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary above, to the extent a pledge the granting of such Lien with respect to such Equity Interests shall no longer result in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC materially adverse U.S. federal income tax consequences (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to determined by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties good faith consultation with the Borrower (notwithstanding it being agreed and understood that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries(i) such that materially adverse U.S. federal income tax consequences exist as of the foregoing condition ceases Closing Date and (ii) any potential adverse tax consequence in excess of $250,000 (as determined by the Borrower’s external tax advisors) shall be deemed to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarymaterially adverse), the Loan Parties shall not be pledge 100% of the issued and outstanding Equity Interests in such FSHCO or CFC, as applicable.
(b) Subject to the terms of the Term/ABL Intercreditor Agreement, and to the extent required by this Agreement or any Collateral Document, the Borrower will take, and will cause the other Loan Parties to grant a take, all actions that are necessary or appropriate to (a) maintain the Administrative Agent’s security interest in the Collateral in full force and effect at all times (including the perfection and priority thereof), (b) preserve and protect the Collateral and (c) protect and enforce the Borrower’s and the other Loan Parties’ respective rights and title to, and the security interest of the Administrative Agent in, the Collateral; provided, however, that the Administrative Agent and the Lenders shall release any personal property Lien upon any Collateral that is the subject of a type Disposition (or owned by any Loan Party which is the subject of a Disposition) permitted under the terms of this Agreement (other than a Disposition to a Person that would not constitute Pledged Collateral is a Loan Party). The Borrower will execute, and will cause the other Loan Parties to execute, acknowledge where appropriate, and deliver, and cause to be executed, acknowledged where appropriate, and delivered, from time to time promptly at the reasonable request of the Administrative Agent, all such instruments and documents as are necessary or Article 9 Collateral (each as defined appropriate to maintain, to the extent permitted by applicable law, the Administrative Agent’s perfected security interest in the Guarantee Collateral to the extent and Collateral Agreement) in the priority required pursuant to Section 3.01 or Section 4.01 of this Agreement and the Guarantee and Collateral AgreementDocuments.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement (and (iiXETAPLAN, Inc., if it acquires any material assets or begins any materials operations, in which case it shall be considered a Subsidiary formed or acquired after the date of this Agreement for purposes of this Section 5.32) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)acceptable to Lender and a form of Guaranty Agreement acceptable to Lender. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, Lender in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes CollateralSubsidiary, on including any parcel of real property owned by such terms as may be required pursuant to the terms of the Collateral DocumentsSubsidiary.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign foreign Subsidiary directly owned by the Borrower or any domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent Lender pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent Lender shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date date of this Agreement (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Instruments that become subject to the Lien in favor of the Agent Lender upon acquisition thereof), the Borrower will notify the Agent and the Lenders Lender thereof, and, if requested by the Agent or the Required LendersLender, the Borrower will cause such assets to be subjected to a Lien securing the Obligations Indebtedness and will take, and cause the Loan Parties that are Subsidiaries applicable Subsidiary(s) to take, such actions as shall be necessary or reasonably requested by the Agent Lender to grant and perfect such Liens, including actions described in paragraph (ca) and (b) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days thirty (30) days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within thirty (ii30) will simultaneously therewith days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other direct Material Domestic Subsidiary that is of a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its direct Domestic Subsidiaries (orSubsidiaries, in the case of (A) any other than a Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of is a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B)Holding Company, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary that is a CFC (including any Subsidiary that becomes a CFC after the Effective Date) and each Foreign Subsidiary Holding Company, in each case, directly owned by the Borrower or any Subsidiary that is a another Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to . Notwithstanding the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a foregoing no Loan Party after shall be required (i) to take any such action if the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders thereof, and, if requested by of the Agent or the Required Lenders, the Borrower will cause such assets security to be subjected afforded thereby (ii) to authorize or file any document or registration in a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense jurisdiction located outside of the Loan PartiesUnited States or (iii) to take any action with respect to any assets located outside of the United States.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
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Sources: Credit Agreement (Etsy Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsIn connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report delivered in connection therewith and each Subsidiary the list of current Mortgaged Properties (as described in Section 5.15(c)(vi)) to ascertain whether the Mortgaged Properties represent at least 85% of the total PV-9 of the Borrowing Base Properties evaluated in such Reserve Report. In the event that is a Loan Party the Mortgaged Properties do not represent at least 85% of such total PV-9, then the Borrower shall, and shall cause the other Loan Parties to, grant, on or prior to the earlier of (i) each sixty (60) days after delivery of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ethe certificate required under Section 5.15(c) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of thirty (30) days after the end of the most recently ended fiscal quarter of Administrative Agent notifies the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days that the Mortgaged Properties do not represent at least 85% of such total PV-9 (or such later date as agreed to by the Administrative Agent may agree in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, Administrative Agent as security for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property Obligations a first priority Lien (subject to the limitations with respect Permitted Mortgaged Property Liens) on additional Oil and Gas Properties not already subject to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms a Lien of the Collateral Documents such that after giving effect thereto, the Mortgaged Properties will represent at least 85% of such total PV-9. All such Liens will be created and perfected by and in accordance with the Collateral Documents, including, if applicable, any additional Mortgages.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willthe Borrower shall, and will shall cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and agreements, instruments, forms and notices 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 serving notices of assignment and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), 4.01) which may be required by law Requirements of 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the each Borrower and each Subsidiary that is a Loan Party shall cause any Subsidiary of the Parent to, upon the request of the Agent, (i) each grant Liens to the Agent, for the benefit of its Domestic Subsidiaries (other than the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Immaterial property of such Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as execute a Guaranty of the end Obligations, in form and substance satisfactory to the Agent, and (iii) in connection with the foregoing requirements, or either of them, deliver to the Agent all items of the most recently ended fiscal quarter of the Borrower has ceased to qualify type required by Section 8.1(a) (as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”applicable). Upon execution and delivery thereofof such Loan Documents and other instruments, each certificates, and agreements, such Person (i) Subsidiary shall automatically become a Loan Party Borrower hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, In the event that any Borrower and each Subsidiary that is a Loan Party will cause (ishall obtain executed “Junior Subordination Agreements” from any “Junior Lenders” as required by Section 7.1(m) 100% of the issued and outstanding Equity Interests CapitalSource Subordinated Debt Agreement, such Borrower shall do so only on the condition that the Debt of each of its Domestic Subsidiaries (orsuch Borrower to such Junior Lenders is subordinated to the Obligations to at least the same extent as the Subordinated Debt is subordinated to the Obligations, in the each case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the on terms and conditions of the Loan Documents or other security documents as satisfactory to the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryits absolute discretion.
(c) Without limiting the foregoing, each Loan Party willthe Borrowers shall, and will shall cause each Subsidiary that is a Loan Party of the Parent’s Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a Loan Party may at its election cause any of its Domestic Subsidiaries, and shall (within 30 days after such formation or acquisition, or determination that such Subsidiary is a Subsidiary, or designation of a Subsidiary as a Subsidiary Borrower, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) Effective Date, or any such Domestic Subsidiary that was an Immaterial designated a Subsidiary butBorrower, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to (A) become a Loan Party within 20 Business Days by executing, as applicable, a Borrower Joinder Agreement or a Guarantor Joinder Agreement and (B) to execute and deliver such amendments, supplements or such later date documents of accession to any Collateral Documents as agreed to by the Administrative Agent deems necessary for such Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in its sole discretion) by executing a Joinder Agreement the Collateral described in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)such Collateral Document with respect to such Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may . The requirements of this clause (a) shall not be required pursuant to the terms of the Collateral Documents.
be satisfied with respect to any Subsidiary (bx) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (subject to any legal or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (special purpose or limited purpose entity, any contractual restriction preventing or prohibiting it from satisfying such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, requirement or (y) another DRE with respect to which the Administrative Agent determines that holds more than 65% the cost of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) satisfaction of such Domestic Subsidiary) requirement with respect thereto exceeds the value afforded thereby (and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any such Subsidiary that is does not so satisfy the terms of this Section 5.14(a) shall not become a Loan Party to be subject at all times to and/or a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph Party hereunder).
(b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary Subject to the extent a pledge of such Equity Interests limitations set forth in favor of the Agent or to secure any debt securities of Security Agreement, the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party Company will, and will cause each Subsidiary that is a Loan Party to, execute any and deliverall further documents, or cause to be executed and delivered, to the Agent such documentsfinancing statements, agreements and instruments, and will take or cause to be taken all 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which that may be required by law under any applicable law, or which that the Administrative Agent mayor the Required Lenders may reasonably request, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the each Borrower and each Subsidiary that is a other U.S. Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Material Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed created or acquired after the Second Restatement Effective Date, (ii) any Subsidiary that has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, shall be as determined as of the end most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) or (iii) any Domestic Subsidiary or Foreign DRE whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the most recently ended fiscal quarter of the Borrower has ceased to qualify foregoing events or determinations, as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days applicable (or such later date as agreed to which period may be extended by the Administrative Agent in its sole discretion) ), a U.S. Loan Guarantor and thus a U.S. Loan Party by executing a the Joinder Agreement in substantially the form set forth as Exhibit D J hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agentwill, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect relating to pledges of Equity Interests set forth in paragraph (b) of this Section 5.11 and 5.13, grant Liens to the Administrative Agent (for the benefit of the Lender Parties) in any other limitations set forth in the Guarantee and Collateral Agreement) property of such U.S. Loan Party which constitutes Collateral. Notwithstanding the foregoing, on such terms as may and for the avoidance of doubt, (i) neither PPC Mexico nor any of PPC Mexico’s subsidiaries, (ii) none of the ▇▇▇ Park Entities and (iii) none of the UK/EU Entities, in each case, is or shall be required pursuant to become a U.S. Loan Party. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to become a U.S. Loan Party to the terms of extent resulting in material adverse tax consequences to the Collateral DocumentsBorrowers and their Subsidiaries, as determined in good faith by the Borrowers.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any the Domestic Subsidiaries other than Domestic Subsidiaries whose Equity Interests are owned, directly or indirectly, by a Foreign Subsidiary that is treated as a disregarded entity corporation for U.S. Federal income tax purposes, and (B) the Foreign DREs whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes (purposes, other than any such Domestic Subsidiary, Foreign DRE where the assets of such Foreign DRE include Equity Interests of a “DRE”controlled foreign corporation” (within the meaning of Section 957(a) that holds more of the Code) that, when aggregated with any other Equity Interests held by any other Affiliates of such Foreign DRE would constitute ownership of greater than 65% of the Capital Stock total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote in such controlled foreign corporation (within it being understood that, pursuant to paragraph (a) of this Section, such Foreign DRE shall pledge all of its assets which do not constitute Equity Interests in such controlled foreign corporation and such Equity Interest in the meaning controlled foreign corporation such that, when aggregated with the Equity Interests of Treas. Reg. Section 1.956-2(c)(2)) and 100such controlled foreign corporation pledged by any other Affiliates of the Foreign DRE, the total Equity Interests pledged by the Foreign DRE will constitute a pledge of 65% of the issued and outstanding total combined classes of Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2in such controlled foreign corporation)) of such Domestic Subsidiary) and ; (ii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary that is not a Foreign DRE; and (within the meaning of Treas. Reg. Section 1.956-2(c)(2)iii) and 100% of the issued and outstanding non-voting Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956each First-2(c)(2)) in each Tier Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is not a Loan Party Foreign DRE, to be subject at all times to a valid, perfected first priority perfected Lien security interest (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, howevernotwithstanding the foregoing, this paragraph no U.S. Loan Party shall be required to pledge any Equity Interests of PPC Mexico or its subsidiaries. The Borrowers agree that if (x) the Administrative Agent notifies the Borrower Representative that as a result of a Change in Law there is a reason to believe that a pledge of a greater percentage of any Foreign Subsidiary’s voting Equity Interests or a guarantee by any Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in a “deemed dividend” under Section 956 of the Code or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge and (y) subsequent to the receipt of such notice the Borrower Representative reasonably determines (which determination the Borrower Representative agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Administrative Agent) that a pledge of more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary or a guarantee by such Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in such a “deemed dividend” or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge, the applicable Borrower will promptly pledge such greater percentage of the voting Equity Interests of each such Foreign Subsidiary and cause each such Foreign Subsidiary to provide a guarantee of the U.S. Secured Obligations, in each case to the extent that the foregoing could not reasonably be expected to result in such a “deemed dividend” under Section 956 of the Code or other Tax liability to the Borrowers or any Foreign Subsidiary. Furthermore, the Lenders agree that if (1) the Borrower Representative notifies the Lenders that as a result of a Change in Law there is a reason to believe that a pledge of a lower percentage of any Foreign Subsidiary’s voting Equity Interests would be reasonably necessary in order to avoid there being a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax liability to the Borrowers or any Foreign Subsidiary and (2) subsequent to the receipt of such notice, each Lender reasonably determines (which determination each Lender agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Borrower Representative) that a pledge of less than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary would be reasonably necessary in order to avoid there being a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax liability to the Borrowers or any Foreign Subsidiary, the applicable Borrower may promptly pledge such lower percentage of the voting Equity Interests of each such Foreign Subsidiary and the Administrative Agent (for the benefit of the Lender Parties) shall promptly release any excess percentage, to the extent necessary such that the foregoing would avoid there being a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax liability to the Borrowers or any Foreign Subsidiary.
(c) Subject to Requirements of Law, each Bermuda Borrower and each other Bermuda Loan Party shall cause (i) any Material Subsidiary that is organized under the laws of Bermuda and is created or acquired after the Effective Date, (ii) any Subsidiary that is organized under the laws of Bermuda and has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) above shall be as determined as of the most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) shall not require the Borrower or (iii) any Subsidiary that is organized under the laws of Bermuda that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the foregoing events or determinations, as applicable (which period may be extended by the Administrative Agent in its sole discretion), a Bermuda Loan Guarantor by executing a guarantee agreement that guarantees repayment of the Bermuda Secured Obligations (which guarantee agreement shall be in substantially the form of the Bermuda Guaranty) and a security agreement (which shall, among other things, pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest in all the personal property of each such Subsidiary, the foregoing to be in substantially the form of the Bermuda Pledge Agreement, the Bermuda Security Agreement or the Puerto Rico Security Agreement, as applicable) that secures repayment of the Bermuda Secured Obligations, together with such other documentation and filings that the Administrative Agent may reasonably require in order to perfect its valid, perfected first priority security interest (isubject to Permitted Liens) any Equity Interests of a Subsidiary in the assets subject to the extent a pledge terms of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySecurity Agreement.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(de) Subject to The Borrower Representative will promptly notify the limitations set forth or referred to in this Section 5.11, Administrative Agent if any material assets (including Borrower or any owned other Loan Party acquires any real or personal property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date 25,000,000 (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become are, as a result of actions previously taken, automatically subject to the Lien a valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required LendersLenders and subject to the terms and conditions of this Agreement, the Borrower Borrowers will promptly cause such assets to be subjected to a Lien valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) securing the applicable Secured Obligations and will take, and cause cause, as reasonably practicable, the applicable Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If; provided that it is hereby acknowledged and agreed that, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in request and such Loan Party shall not deliver any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in Mortgage until the Guarantee Lenders are reasonably satisfied with flood insurance due diligence and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementflood insurance compliance.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the each Borrower and each Subsidiary that is a other U.S. Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Material Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed created or acquired after the Second Restatement Effective Date, (ii) any Subsidiary that has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, shall be as determined as of the end most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) or (iii) any Domestic Subsidiary or Foreign DRE whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the most recently ended fiscal quarter of the Borrower has ceased to qualify foregoing events or determinations, as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days applicable (or such later date as agreed to which period may be extended by the Administrative Agent in its sole discretion) ), a U.S. Loan Guarantor and thus a U.S. Loan Party by executing a the Joinder Agreement in substantially the form set forth as Exhibit D M hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agentwill, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect relating to pledges of Equity Interests set forth in paragraph (b) of this Section 5.11 and 5.13, grant Liens to the Administrative Agent (for the benefit of the Lender Parties) in any other limitations set forth in the Guarantee and Collateral Agreement) property of such U.S. Loan Party which constitutes Collateral. Notwithstanding the foregoing, on such terms as may and for the avoidance of doubt, (i) neither PPC Mexico nor any of PPC Mexico’s subsidiaries and (ii) none of the ▇▇▇ Park Entities is or shall be required pursuant to the terms of the Collateral Documentsbecome a U.S. Loan Party.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any the Domestic Subsidiaries other than Domestic Subsidiaries whose Equity Interests are owned, directly or indirectly, by a Foreign Subsidiary that is treated as a disregarded entity corporation for U.S. Federal income tax purposes, and (B) the Foreign DREs whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes (purposes, other than any such Domestic Subsidiary, Foreign DRE where the assets of such Foreign DRE include Equity Interests of a “DRE”controlled foreign corporation” (within the meaning of Section 957(a) that holds more of the Code) that, when aggregated with any other Equity Interests held by any other Affiliates of such Foreign DRE would constitute ownership of greater than 65% of the Capital Stock total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote in such controlled foreign corporation (within it being understood that, pursuant to paragraph (a) of this Section, such Foreign DRE shall pledge all of its assets which do not constitute Equity Interests in such controlled foreign corporation and such Equity Interest in the meaning controlled foreign corporation such that, when aggregated with the Equity Interests of Treas. Reg. Section 1.956-2(c)(2)) and 100such controlled foreign corporation pledged by any other Affiliates of the Foreign DRE, the total Equity Interests pledged by the Foreign DRE will constitute a pledge of 65% of the issued and outstanding total combined classes of Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2in such controlled foreign corporation)) of such Domestic Subsidiary) and ; (ii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary that is not a Foreign DRE; and (within the meaning of Treas. Reg. Section 1.956-2(c)(2)iii) and 100% of the issued and outstanding non- voting Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956each First-2(c)(2)) in each Tier Foreign Subsidiary directly owned by that is not a Foreign DRE, to 107
(c) Subject to Requirements of Law, each Bermuda Borrower and each other Bermuda Loan Party shall cause (i) any Material Subsidiary that is organized under the Borrower laws of Bermuda and is created or acquired after the Effective Date, (ii) any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X organized under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests laws of any Unrestricted Subsidiary.Bermuda and has otherwise become a Material 108
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(de) Subject to The Borrower Representative will promptly notify the limitations set forth or referred to in this Section 5.11, Administrative Agent if any material assets (including Borrower or any owned other Loan Party acquires any real or personal property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date 25,000,000 (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become are, as a result of actions previously taken, automatically subject to the Lien a valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required LendersLenders and subject to the terms and conditions of this Agreement, the Borrower Borrowers will promptly cause such assets to be subjected to a Lien valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) securing the applicable Secured Obligations and will take, and cause cause, as reasonably practicable, the applicable Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If; provided that it is hereby acknowledged and agreed that, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee request and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.such Loan 109
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawthe provisions of Section 8.05, Holdingsany Credit Party may from time to time create or acquire new Subsidiaries, including in connection with Permitted Acquisitions or otherwise, provided that in the Borrower and each case of any such Subsidiary that is a Loan Party shall cause Restricted Subsidiary:
(i) each within the later to occur of its (x) the date that is 60 days thereafter or (y) the next date a Compliance Certificate is required to be delivered following the date of such formation or acquisition (or, in either case, such later date as the Administrative Agent may reasonably agree) of (A) the creation or direct or indirect acquisition of any new Restricted Subsidiary that is a Domestic Subsidiaries Subsidiary (other than any Immaterial Excluded Subsidiary) or (B) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary (except other than any Excluded Subsidiary), the Borrower will cause such Domestic Subsidiary to (i) execute and deliver to the Administrative Agent (1) a joinder to this Agreement, pursuant to which such new Domestic Subsidiary shall become a party hereto and shall guarantee the payment in full of the Secured Obligations under this Agreement and the other Credit Documents substantially in the form attached as otherwise provided Exhibit F hereto and (2) a joinder to the Security Agreement, pursuant to which such new Domestic Subsidiary shall become a party thereto and shall subject to the terms of the Security Agreement grant to the Administrative Agent a first priority Lien upon and security interest in paragraph its assets that constitute Collateral (eother than Excluded Assets) as security for its obligations under the Guaranty, subject only to Permitted Liens, and pursuant to which all of the Capital Stock (other than Capital Stock that qualifies as Disqualified Capital Stock or Excluded Assets) of this Section 5.11), Unrestricted such new Domestic Subsidiary or Securitization Entities) formed or acquired after shall be pledged to the Second Restatement Date Administrative Agent and (ii) any take such Domestic Subsidiary that was an Immaterial Subsidiary but, actions as may be required by the terms hereof or of the end applicable Security Documents to grant and perfect Liens to the Administrative Agent, for the benefit of itself and the Lenders and each other Secured Party in any property (subject to the limitations set forth herein and in the other Credit Documents) of such Credit Party which constitutes Collateral, on such terms as are required pursuant to the terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial SubsidiarySecurity Documents, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon and upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and Credit Documents; and
(ii) the applicable Credit Party will simultaneously therewith or as soon as practicable thereafter grant Liens deliver any such other documents, certificates and agreements, in form and substance reasonably satisfactory to the Administrative Agent, for as the benefit Administrative Agent may reasonably request in connection therewith and will take such other action as the Administrative Agent may reasonably request to create in favor of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth a perfected first priority security interest in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required being pledged pursuant to the terms of the Collateral Documentsdocuments described above.
(b) Holdings, In the Borrower event that any Credit Party acquires Realty (other than Realty that qualifies as Excluded Assets) and each Subsidiary that is a Loan Party will cause (i) 100% such interest in such Realty has not otherwise been made subject to the Lien of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien Security Documents in favor of the Agent pursuant to Administrative Agent, then, in each case, the terms applicable Credit Party shall promptly (and conditions of in any event within 90 days after the Loan Documents acquisition thereof, or other security documents such longer period as the Administrative Agent shall may reasonably request; provided, however, this paragraph (bagree) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, take such actions as shall be reasonably necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan . The Credit Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 within 90 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to following a written request by the Administrative Agent in its sole discretion(or such longer period as the Administrative Agent may reasonably agree), cause one to be executed and delivered, the relevant Mortgages to create in favor of the Administrative Agent, a valid and, subject to any filing and/or recording referred to herein, perfected, first-priority security interest in such Realty and, corresponding UCC fixture filings, flood hazard determination forms, title insurance policies (including any customary endorsements thereto), surveys (or more such Domestic Restricted Subsidiaries survey updates to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries arethe extent sufficient to obtain survey coverage under the title policy), individuallylocal counsel opinions and other documentation, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Administrative Agent shall reasonably request. Notwithstanding any provision of the Loan Documents anything to the contrarycontrary in this Section 6.09 or any Security Document, the Loan Parties no Credit Party shall not be required to (x) grant any Lien on, or take any other action with respect to a security interest Lien on, any Excluded Assets or (y) take any other action or perfect any Lien as provided for in any personal property Section 2(d) of a type that would not constitute Pledged Collateral the Security Agreement. All Liens required to be granted or Article 9 Collateral (each as defined perfected pursuant to this Section 6.09 shall be subject to exceptions and limitations consistent with those set forth in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementSecurity Documents.
Appears in 1 contract
Sources: Credit Agreement (Metaldyne Performance Group Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause As promptly as possible but in any event within thirty (i30) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as may be agreed to upon by the Administrative Agent) after any Person becomes a Subsidiary or any Subsidiary qualifies independently as, or is designated by the Borrower or the Administrative Agent as, a Material Domestic Subsidiary pursuant to the definition of “Material Domestic Subsidiary”, the Borrower shall (i) provide the Administrative Agent with written notice thereof setting forth information in reasonable detail describing the material assets of such Person and (ii) cause each such Subsidiary which also qualifies as a Material Domestic Subsidiary to execute and deliver to the Administrative Agent a Joinder Agreement, which Joinder Agreement shall be accompanied by appropriate organizational resolutions, other organizational documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent and its sole discretion) by executing counsel. Each such Person delivering a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Subsidiary Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) HoldingsThe Borrower will cause, the Borrower and will cause each Subsidiary that is a other Loan Party to cause, all of its owned property (whether real, personal, tangible, intangible, or mixed) 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, subject in any case to Liens permitted by Section 6.02 to the extent any such Permitted Encumbrances would have priority over the Liens in favor of the Administrative Agent pursuant to any applicable law. Without limiting the generality of the foregoing, each Loan Party (i) will cause (ix) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, and (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Material Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant for the benefit of the Administrative Agent and the other Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or other pledge or security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or request and (ii) will deliver Mortgages and all related Mortgage Instruments and other deliveries requested by the Equity Interests Administrative Agent with respect to real property owned by such Loan Party to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing, as of any Unrestricted Subsidiarythe Effective Date, the Borrower shall only be required to deliver Mortgages and Mortgages Instruments in respect of each Specified Property until the date that is forty-five (45) 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.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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, Mortgage Instruments, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawThe Borrower will, Holdings, the Borrower and will cause each Material U.S. Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ean Excluded Subsidiary) of this Section 5.11)to, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have cause all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and its personal property constituting Collateral (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (but subject to the limitations with respect to Equity Interests set forth exceptions expressly contained in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien Liens in favor of the Administrative Agent pursuant for the benefit of the Secured Parties to secure the Secured Obligations in accordance with the terms and conditions of the Loan Documents Collateral Documents, subject in any case to Liens permitted by Section 6.02. The requirements in this Section 5.10(a) shall be satisfied within forty-five (45) days (or other security documents such longer time as the Administrative Agent shall reasonably request; provided, however, this paragraph (bmay agree) shall not require after the Borrower acquires or forms any Material U.S. Subsidiary (other than an Excluded Subsidiary) or any Subsidiary becomes a Material U.S. Subsidiary. In connection with the requirements of the two preceding sentences, the Borrower will use commercially reasonable efforts to grant deliver to the Administrative Agent, within such forty-five (45) days (or such longer time as the Administrative Agent may agree), fully executed pledging and collateral documentation and filings as may be required under applicable foreign law to provide the Administrative Agent with a perfected, first priority security interest in 65% of the voting capital stock and other voting Equity Interests of any Material Foreign Subsidiaries, along with favorable opinions of foreign counsel regarding such documentation and filings, in each case as the Administrative Agent may reasonably request and in form and substance reasonably satisfactory to it; provided that the Borrower shall not be required to take such steps to the extent (i) any Equity Interests of a Subsidiary to such pledge is prohibited under applicable foreign law or the extent a pledge organizational documents of such Equity Interests Material Foreign Subsidiary (but only if such prohibition in favor organizational documents cannot be removed through the commercially reasonable efforts of the Agent Borrower), (ii) such pledge requires any governmental or third party consent (not including consents from any Affiliates of the Borrower), (iii) such pledge would cause material adverse tax (including foreign tax) consequences to secure any debt securities of the Borrower or any Subsidiary that its Subsidiaries or (iv) the cost of pledging, gsdocs\8126959.10 perfecting or maintaining such pledge would be entitled exceed the practical benefits to such a security interest would require separate financial statements of a Subsidiary the Lenders to be filed with the SEC afforded thereby (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to determined by the Administrative Agent in its sole discretionreasonable judgment), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date and date of this Agreement (ii) including any such Domestic Subsidiary that was an Immaterial Subsidiary but, as Subsidiaries formed or acquired pursuant to the Permitted Overland Acquisition) in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party Party, within 20 Business Days (30 days after the date of such formation or such later date as agreed to by the Administrative Agent in its sole discretion) acquisition, by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and other Loan Party shall cause each of its Material Domestic Subsidiaries (iiincluding any such Subsidiaries formed or acquired pursuant to the Permitted Overland Acquisition) will simultaneously therewith formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within 30 days after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as soon as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Material Foreign Subsidiary (including any Subsidiary who becomes a Material Foreign Subsidiary after the Effective Date) directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates the delivery of the items contemplated by paragraph (m) thereof to the extent the Borrower has been unable to deliver such items by the Closing Date after having used its commercially reasonable efforts to obtain and corporate and organizational documentsdeliver such items by the Closing Date)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, (i) the TD Finance Merger and the TransDigm Holdings Merger shall be permitted, (ii) TD Finance shall not be required to become a Loan Party (and no Loan Party shall be required to pledge any equity interest in TD Finance) unless the TD Finance Merger fails to occur within 5 Business Days after the Closing Date, in which case within 10 Business Days after the Closing Date TD Finance shall be required to satisfy the requirements of this Section 5.11, (iii) TransDigm Holdings shall not be required to become a Loan Party (and no Loan Party shall be required to pledge any equity interest in TransDigm Holdings) unless the TransDigm Holdings Merger fails to occur within 5 Business Days after the Closing Date, in which case within 10 Business Days after the Closing Date TransDigm Holdings shall be required to satisfy the requirements of this Section 5.11, (iv) ▇▇▇▇▇▇▇ Engineering Corp. shall not be required to become a Loan Party, and Loan Parties shall not be required to take any actions in respect of it, until 30 days after the Closing Date; provided nothing in this clause (iv) shall require any such action to be taken in the event it constitutes an Immaterial Subsidiary and (v) the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 1 contract
Sources: Credit Agreement (Transdigm Inc)
Additional Collateral; Further Assurances. (ai) Subject to applicable law, Holdingseach Borrower shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired on or after the date of this Agreement in accordance with the terms of this Agreement to become a Guarantor (provided, the Borrower and each that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a Loan Party wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) be deemed to be an acquisition for the purposes of this Section 5.11Agreement), Unrestricted Subsidiary or Securitization Entitieswithin thirty (30) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition, by executing a Joinder Agreement in substantially the form joinder agreement set forth as Exhibit D E hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(ii) will simultaneously therewith Subject to applicable law, each Borrower and other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement (provided, that any Subsidiary Redesignation resulting in an Unrestricted Subsidiary that is a wholly-owned Material Domestic Subsidiary becoming a Restricted Subsidiary shall be deemed to be an acquisition for the purposes of this Agreement) and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, (A) within thirty (30) days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, and (B) within sixty (60) days (or such later date as the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such terms Subsidiary becomes a Material Domestic Subsidiary, as may be required applicable) to execute a Mortgage, pursuant to which such Material Domestic Subsidiary shall grant Liens to the terms Administrative Agent, for the benefit of the Collateral DocumentsAdministrative Agent and the Lenders, in any property of such Loan Party which constitutes Material Real Property and satisfy all Mortgage Requirements in connection therewith.
(biii) HoldingsSubject to the foregoing clauses (i) and (ii), the Borrower and each Subsidiary that is a Loan Party will cause (iA) 100% of the issued and outstanding Equity Interests Stock of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or and (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Stock 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)) of such Domestic Subsidiary) and (ii) 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 Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Excluded Subsidiary (including any Subsidiary who becomes an Excluded Subsidiary after the Effective Date) directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(civ) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Livent Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, HoldingsIn connection with each redetermination of the Borrowing Base during a Borrowing Base Period only, the Borrower shall review the Reserve Report delivered in connection therewith and each Subsidiary the list of current Mortgaged Properties (as described in Section 5.14(c)(v)) to ascertain whether the Mortgaged Properties represent at least 85% of the total PV-9 of the Borrowing Base Properties evaluated in such Reserve Report. In the event that is a Loan Party the Mortgaged Properties do not represent at least 85% of such total PV-9, then the Borrower shall, and shall cause the other Loan Parties to, grant, on or prior to the earlier of (i) each sixty (60) days after delivery of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ethe certificate required under Section 5.14(c) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of thirty (30) days after the end of the most recently ended fiscal quarter of Administrative Agent notifies the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days that the Mortgaged Properties do not represent at least 85% of such total PV-9 (or such later date as agreed to by the Administrative Agent may agree in its sole discretion), to the Administrative Agent as security for the Secured Obligations a first priority Lien (provided that Permitted Liens may exist and may have the priority required by any Requirement of Law or as provided in Section 8.07(c)) by executing on additional Oil and Gas Properties not already subject to a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all Lien of the rightsCollateral Documents such that after giving effect thereto, benefitsthe Mortgaged Properties will represent at least 85% of such total PV-9. All such Liens will be created and perfected by and in accordance with the Collateral Documents, dutiesincluding, if applicable, any additional Mortgages. In order to comply with the foregoing, (A) if any Restricted Subsidiary places a Lien on its Oil and obligations Gas Properties in such capacity under favor of the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens Administrative Agent pursuant to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) foregoing provisions of this Section 5.11 5.10(a) and such Restricted Subsidiary is not a Subsidiary Guarantor, then it shall become a Subsidiary Guarantor and comply with Section 5.09 and (B) if any other limitations set forth new Mortgage is required in a jurisdiction where a Mortgage has not previously been recorded, then the Guarantee and Collateral Agreement) of such applicable Loan Party which constitutes Collateralshall execute and deliver such other additional closing documents, on such terms certificates and legal opinions as may shall reasonably be required pursuant to requested by the terms of the Collateral DocumentsAdministrative Agent.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party willduring a Borrowing Base Period only, the Borrower shall, and will shall cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and agreements, instruments, forms and notices 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 serving notices of assignment and such other actions or deliveries of the type required by Section 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), 4.01) which may be required by law Requirements of 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 the Loan Parties.
(dc) Subject Within sixty (60) days after the commencement of a Borrowing Base Period after any Interim Investment Grade Period (or such later date as the Administrative Agent may agree to in its sole discretion), the Borrower shall, and shall cause each Borrowing Base Period Required Guarantor to:
(i) execute and deliver Collateral Documents granting a Lien on, and security interest in, the Collateral described in the Collateral Documents as in effect immediately prior to the limitations set forth commencement of the most recently ended Interim Investment Grade Period (which, for the avoidance of doubt, shall include the execution and delivery of Control Agreements with respect to any Deposit Accounts or referred to Securities Accounts of the Loan Parties, in this Section 5.11each case, if any material assets other than Excluded Accounts);
(including any ii) cause all of the issued and outstanding Equity Interests of each Borrowing Base Period Required Guarantor owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become to be subject to the a first priority, perfected Lien in favor of the Administrative Agent upon acquisition thereof)to secure the Secured Obligations in accordance with the terms and conditions of, and subject to the exceptions set forth in, the Borrower will notify Collateral Documents in existence prior to the commencement of the most recently ended Interim Investment Grade Period, subject in any case to Liens created under the Loan Documents, restrictions on transfer imposed by applicable securities laws and other Liens permitted hereunder that arise by operation of law and (A) if any of such Equity Interests consist of certificated securities, deliver to the Administrative Agent the certificates representing such securities, in each case with appropriate endorsements or transfer powers, and (B) if any of such Equity Interests consist of uncertificated securities, enter into a control agreement with the Lenders thereofissuer of such Equity Interests granting the Administrative Agent control (within the meaning of the UCC) over such uncertificated securities;
(iii) execute and deliver Mortgages such that the Mortgaged Properties (after giving effect to such Mortgages) represent at least 85% of the total PV-9 of the Borrowing Base Properties evaluated in the most recently delivered Reserve Report;
(iv) deliver to the Administrative Agent title information in form and substance reasonably acceptable to the Administrative Agent (but consistent with usual and customary standards for the geographic regions in which the Borrowing Base Properties are located) covering enough of the Proved Reserves so that the Administrative Agent shall have received (together with title information previously delivered to the Administrative Agent) satisfactory title information on either (A) at least 80% of the total PV-9 of the Borrowing Base Properties evaluated in the most recently delivered Reserve Report or (B) Borrowing Base Properties having a total PV-9 in excess of 200% of the Borrowing Base (as redetermined, andor to be redetermined, if requested by in the Agent or the Required Lenders, Scheduled Redetermination for which the Borrower will is then delivering such title information);
(v) cause such assets each Borrowing Base Period Required Guarantor to become a Subsidiary Guarantor;
(vi) deliver to the Administrative Agent appropriate resolutions, other Organizational Documents and legal opinions as may be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent, in each case, in form substantially similar to those documents delivered on the Effective Date pursuant to Section 4.01 with respect to Loan Parties or in such other form and substance reasonably satisfactory to the Administrative Agent; and
(vii) execute and deliver, or cause to be executed and delivered, to the Administrative Agent such other documents, agreements, instruments, forms and notices and take or cause to grant be taken such further actions (including the filing and perfect recording of financing statements, fixture filings, Mortgages and other documents serving notices of assignment and such Liens, including other actions described in paragraph (cor deliveries of the type required by Section 4.01) which may be required by Requirements of Law or which the Administrative Agent may reasonably request to carry out the terms and conditions of this SectionSection 5.10(c) and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after . For the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% avoidance of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydoubt, the Loan Parties sixty (60) day period provided by this Section 5.10(c) shall be without duplication to (and not be required in addition to) any other grace period to grant a security interest in any personal property of a type that would not constitute Pledged enter into Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Documents provided under this Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingsthe Limited Conditionality Provision, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”)) within thirty (30) days (or such later date as may be agreed upon by the Administrative Agent) of such formation, or acquisition, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsWithout limiting the generality of the foregoing, subject to the Limited Conditionality Provision, the Borrower and each Domestic Subsidiary that is a Loan Party will cause (i) 100% will cause the Applicable Pledge Percentage of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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)Excluded Assets) in each Domestic Subsidiary and First Tier Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant for the benefit of the Secured Parties, to secure the Secured Obligations in accordance with the terms and conditions of the Loan Collateral Documents or such other security documents as the Administrative Agent shall reasonably request; providedrequest and (ii) will deliver Mortgages and Mortgage Instruments with respect to Material Real Property owned by each such Loan Party to the extent, howeverand within such time period as is, this paragraph (b) shall not require reasonably required by the Borrower or any Subsidiary to grant a security interest in Administrative Agent. Notwithstanding the foregoing, the parties hereto acknowledge and agree that (i) any 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, if acquired after the Effective Date, the date that is ninety (90) days after the date the Material Real Property is acquired) or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion with respect thereto, (ii) no pledge agreement in respect of the pledge of Equity Interests of a First Tier Foreign Subsidiary to shall be required until the extent a pledge of date that is ninety (90) days after the Effective Date (or, if acquired after the Effective Date, the date that is ninety (90) days after the date such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor theretoare acquired) or any other law, rule or regulation or such later date as is agreed to by the Administrative Agent in its reasonable discretion and (iiiii) no pledge agreement in respect of the Equity Interests of any Unrestricted Subsidiarya Foreign Subsidiary shall be required hereunder to the extent the Administrative Agent or its counsel determines that, in light of the cost and expense associated therewith, 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) [Intentionally Omitted.]
(d) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instrumentsinstruments (including, without limitation, deposit account control agreements and securities account control agreements), 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 other exceptions set forth in this Agreement or the Collateral Documents), all in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than (i) Excluded Assets, (ii) real property that does not constitute Material Real Property or (iii) assets of the type constituting Collateral under the Guarantee and any Collateral Agreement Document that either become subject to the Lien in favor of the Administrative Agent upon acquisition thereofthereof or with respect to which no notice or further action would be required to create or perfect the Administrative Agent’s Lien in such assets), the Borrower will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Subsidiary Loan Parties that are Subsidiaries 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 (cd) of this Section, all at the expense of the Loan Parties, subject, however, to the Limited Conditionality Provision.
(ef) If, at any time and from time to time after the Second Restatement Date, Effective Date any Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter Subsidiary of the Borrower and that is not a Loan Party shall become party to a guaranty of, or ▇▇▇▇▇ ▇ ▇▇▇▇ on any assets to secure, the Restricted Subsidiaries ABL Obligations, any Subordinated Indebtedness or more than 7.5% any other Material Indebtedness of Consolidated EBITDA of a Loan Party, the Borrower and shall promptly notify the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the BorrowerAdministrative Agent thereof and, then the Borrower shall, not later than 45 within thirty (30) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement thereof (or such later date as may be agreed to upon by the Administrative Agent Agent) cause such Subsidiary to either (i) comply with this Section 5.14 (but without giving effect to the 30-day grace periods provided therein) or (ii) terminate such guaranty and/or Lien, as applicable, in its sole discretion)each case, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be truereasonable satisfaction of the Administrative Agent.
(fg) Notwithstanding any provision of the Loan Documents to the contraryforegoing, the Loan Parties shall not be required to grant parties hereto acknowledge and agree that, (i) in circumstances where the Administrative Agent reasonably determines that the cost or effort of obtaining or perfecting a security interest in any personal Equity Interest or other asset that constitutes Collateral is excessive in relation to the benefit afforded to the 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 creation or perfection of Liens in particular property (including extensions of a type 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 not constitute Pledged Collateral otherwise be required by this Agreement or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementany other Loan Document.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (ix) each of its Domestic Subsidiaries Restricted Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement that is a Restricted Subsidiary and a Wholly Owned Subsidiary or (iiy) any such Domestic each Unrestricted Subsidiary that was an Immaterial is redesignated as a Restricted Subsidiary butin accordance with Section 5.15 and that is a Wholly Owned Subsidiary (other than any Excluded Subsidiary), as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, in each case to become a Loan Party (and in the case of a Subsidiary organized under the laws of the U.S., the United Kingdom or The Netherlands, at Insight’s election with the Administrative Agent’s consent (such consent not to be unreasonably withheld), a Borrower) by executing a Joinder Agreement within 20 Business Days sixty (60) days after the date of such formation or acquisition, or redesignation, or if later, the date such later Restricted Subsidiary becomes a Subsidiary (as such date as agreed may be extended from time to time by the Administrative Agent in its sole discretion) ). In connection therewith, the applicable Loan Party shall deliver to the Administrative Agent all documentation and other information reasonably requested by executing a Joinder Agreement the Administrative Agent in substantially writing regarding such Subsidiary as may be required to comply with the form set forth as Exhibit D hereto (applicable “know your customer” rules and regulations, including the “Joinder Agreement”)USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor (or a Borrower, as applicable) hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes CollateralCollateral (which for clarification, on such terms as may be required pursuant will exclude Excluded Assets), subject to the terms of exceptions and limitations in the Collateral Loan Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary[Reserved].
(c) Without limiting the foregoingforegoing but subject to the limitations and restrictions contained in the Loan Documents, each Loan Party will, and will cause each Restricted Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties[Reserved].
(e) IfSubject to any applicable limitations set forth herein or in any other Loan Document, at if any time and from time Wholly Owned Subsidiary ceases to time be an Excluded Subsidiary after the Second Restatement Effective Date, Domestic Restricted Subsidiaries that are not the Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowerwill, then the Borrower shall, not later than 45 within sixty (60) days after the next following date by on which financial statements for such quarter are the Borrower Representative is required to be delivered deliver a Compliance Certificate pursuant to this Agreement Section 5.01(d) (or such later date longer period as may be agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries Subsidiary to become additional a Loan Parties Party (notwithstanding that and in the case of a Subsidiary organized under the laws of the U.S., the United Kingdom or The Netherlands, at Insight’s election with the Administrative Agent’s consent (such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases consent not to be trueunreasonably withheld), a Borrower) and (i) execute a Joinder Agreement and (ii) grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in any property of such Loan Party which constitutes Collateral to the extent not Excluded Assets and subject to the exceptions and limitations in the Loan Documents, in each case, pursuant to such documents, agreements and instruments as the Administrative Agent shall reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent. In connection therewith, the applicable Loan Party shall deliver to the Administrative Agent all documentation and other information reasonably requested by the Administrative Agent in writing regarding such Subsidiary as may be required to comply with the applicable “know your customer” rules and regulations, including the USA Patriot Act.
(f) Notwithstanding any provision of the Loan Documents foregoing or anything to the contrarycontrary contained in any Loan Document, the parties hereto acknowledge and agree that (i) in circumstances where the Administrative Agent and Borrower Representative in good faith determine that the cost, burden or consequences of obtaining or perfecting a security interest in any asset that constitutes Collateral is excessive in relation to the benefit afforded to the Secured Parties thereby, the Administrative Agent in its Permitted Discretion may exclude such Collateral from the creation and perfection requirements set forth in this Agreement and the other Loan Documents, (ii) the Administrative Agent in its Permitted Discretion may grant extensions of time for the creation or perfection of Liens in particular property where the Administrative Agent and the Borrower Representative determine 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 Loan Document, (iii) no security or pledge agreements or other Collateral Documents governed under the laws of any non-U.S. jurisdiction shall be required (other than the laws of Canada, the United Kingdom, or The Netherlands), and the Loan Parties shall not be required to grant a security interest take any actions outside the U.S. to create or perfect Liens in any personal assets located or titled outside the U.S. (other than Collateral located or titled in Canada, the United Kingdom, or The Netherlands) except to the extent required as Additional Perfection Steps during a Cash Dominion Period, and (iv) no mortgages or deeds of trust (or similar documentation providing Liens with respect to real property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreementunder any non-U.S. jurisdiction) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementshall be required.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to Section 16.4 and applicable law, Holdingseach Obligated Party shall, unless the Required Lenders otherwise consent, cause each Wholly-Owned Subsidiary of the Parent, excluding Lara Acquisition Sub, Inc. (prior to consummation of the Rawlings Acquisition), Ride Snowboard Company, Ride Manufacturing, Inc., SMP Clothing, Inc., Smiley Hats, Inc., Carve, Inc., Preston Binding Company, K2 Funding Inc., K2 Finance Company, K2 Receivables Corporation (collectively referred to in this Section as the "excluded U.S. Subsidiaries") and any other such Subsidiary which is not organized under the laws of Canada (or any province thereof), England, or the U.S. (or any state of the U.S.), to become a Borrower and each Subsidiary that is a Loan Party shall cause Guarantor, or a Guarantor (but not a Borrower), as follows:
(i) each Subsidiary of the Parent organized under the laws of Canada (or any province thereof) shall become a Canadian Guarantor;
(ii) each Subsidiary of the Parent organized under the laws of England shall become a U.K. Guarantor;
(iii) each Subsidiary of the Parent organized under the laws of the U.S. (or any state thereof) shall become a U.S. Borrower and a U.S. Guarantor, as applicable; provided that in the event that any of the excluded U.S. Subsidiaries (individually or collectively) owns any Property with an aggregate book value or fair market value in excess of $100,000 or has revenue in any Fiscal Year in excess of $100,000, the Obligated Parties shall notify the Agent in writing thereof and propose to the Agent that such excluded Subsidiary (or excluded Subsidiaries) become, and with the Agent's and the Required Lenders' consent pursuant to Section 16.4 cause such excluded Subsidiary (or excluded Subsidiaries) to become, either a U.S. Borrower and a U.S. Subsidiary Guarantor or a U.S. Subsidiary Guarantor (but not a U.S. Borrower) subject to the terms of this Agreement to the extent required to cause the aggregate book value or fair market value of all Property owned by such excluded Subsidiaries to be equal to or less than $100,000 and to cause the revenue of all such excluded Subsidiaries, collectively, to be equal to or less than $100,000.
(b) Upon the request of the Agent, each Obligated Party shall (x) grant Liens to the Agent, for the benefit of the Agent and the Lenders, pursuant to such documents as the Agent may reasonably deem necessary and deliver such property, documents, and instruments as the Agent may request to perfect the Liens of the Agent in any Property of such Obligated Party which constitutes Facility Collateral, including any parcel of real Property located in the U.S. or Canada owned by any Obligated Party (provided that, with respect to any such real Property, the Obligated Parties shall only be required to deliver agreements, documents, information, and instruments of the type referenced in Section 4.1(j)), (y) execute a Guaranty Agreement as required by Section 6.31, and (z) in connection with the foregoing requirements, or either of them, deliver to the Agent (in its Domestic Subsidiaries discretion) all items of the type required by Section 4.1 (as applicable). Notwithstanding any other provision of this Agreement:
(i) Liens on Facility Collateral owned by the Parent shall secure all of the Obligations;
(ii) Liens on Facility Collateral owned by the Canadian Obligated Parties shall secure the Canadian Obligations;
(iii) Liens on Facility Collateral owned by the U.K. Obligated Parties shall secure the U.K. Obligations; and
(iv) Liens on Facility Collateral owned by the U.S. Obligated Parties (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (ethe Parent) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after shall secure the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)U.S. Obligations. Upon execution and delivery thereofof such Loan Documents and other agreements, certificates, documents, and instruments, each such Person (i) shall automatically become a Loan Party Borrower and a Guarantor, or a Guarantor (but not a Borrower), as applicable, hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Obligated Party willshall, and will shall cause each Subsidiary that of the Parent's Subsidiaries which is a Loan required to become an Obligated Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (K2 Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall shall, within 30 days of such formation or acquisition or the date such Immaterial Subsidiary becomes a Material Subsidiary, cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement and (ii) any such Domestic each Immaterial Subsidiary that was subsequently becomes a Material Subsidiary and is not otherwise an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Excluded Subsidiary, in each case, in accordance with the terms of this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause to be subject at all times to a perfected Lien in favor of the Administrative Agent in accordance with the terms and conditions of the Collateral Documents: (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of is not a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary.
(c) The Borrower agrees that if (i) the Administrative Agent notifies the Borrower that as a result of a Change in Law there is a reason to believe that more than 65% of the Equity Interests of any Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party would be permitted to be pledged and subject at all times to a first priority perfected Lien in favor of the Administrative Agent pursuant to in accordance with the terms and conditions of the Loan Collateral Documents or other security documents as with no resulting “deemed dividend” under Section 956 of the Agent shall reasonably request; providedCode and (ii) subsequent to the receipt of such notice, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest reasonably determines (in (iconsultation with its counsel and other tax advisors) any that more than 65% of the Equity Interests of such a Foreign Subsidiary would be permitted to the extent be pledged and subject to a pledge of such Equity Interests perfected Lien in favor of the Administrative Agent or to secure any debt securities in accordance with the terms and conditions of the Collateral Documents without such a “deemed dividend” under Section 956 of the Code or other possible tax consequences that are adverse to it, then the Borrower or any shall and shall cause each such Subsidiary that would be to pledge such greater percentage of Equity Interests entitled to such a security interest would require separate financial statements of a Subsidiary vote to be filed subject to a perfected Lien in favor of the Administrative Agent in accordance with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 terms and conditions of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryCollateral Documents.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Shake Shack Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) (x) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization Entitiesexcept as otherwise provided in Section 6.08) existing on the Closing Date or formed or acquired after the Second Restatement Closing Date that is required pursuant to the terms of this Agreement to become a Subsidiary Guarantor pursuant to Section 6.08 or (y) any Domestic Subsidiary that was an Unrestricted Subsidiary but has been designated as a Restricted Subsidiary and (ii) thereafter any such Domestic Subsidiary that was an Immaterial Subsidiary as of the Closing Date but, as of the end of the most recently ended fiscal quarter of the Borrower for which internal financial statements are available has ceased to qualify as an Immaterial SubsidiarySubsidiary or except as otherwise provided in Section 6.08, to become a Loan Party within 20 Business Days (or such later date Subsidiary Guarantor as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder and delivering to the Agent such amendments to the Guarantee and Collateral Agreement in substantially as the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each Agent reasonably deems necessary or advisable to cause such Person (i) shall automatically Subsidiary to become a Loan Party hereunder party to the Guarantee and thereupon shall have all Collateral Agreement (and provide guarantees of the rights, benefits, duties, Obligations) and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter to grant Liens to the Agent, for the benefit of the Agent and the Lenders and Secured Parties, in each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral AgreementAgreement or this Section 5.11) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the each Borrower and each Subsidiary that is a other U.S. Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Material Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed created or acquired after the Second Restatement Effective Date, (ii) any Subsidiary that has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, shall be as determined as of the end most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) or (iii) any Domestic Subsidiary or Foreign DRE whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the most recently ended fiscal quarter of the Borrower has ceased to qualify foregoing events or determinations, as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days applicable (or such later date as agreed to which period may be extended by the Administrative Agent in its sole discretion) ), a U.S. Loan Guarantor and thus a U.S. Loan Party by executing a the Joinder Agreement in substantially the form set forth as Exhibit D J hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agentwill, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect relating to pledges of Equity Interests set forth in paragraph (b) of this Section 5.11 and 5.13, grant Liens to the Administrative Agent (for the benefit of the Lender Parties) in any other limitations set forth in the Guarantee and Collateral Agreement) property of such U.S. Loan Party which constitutes Collateral. Notwithstanding the foregoing, on such terms as may and for the avoidance of doubt, (i) neither PPC Mexico nor any of PPC Mexico’s subsidiaries, (ii) none of the ▇▇▇ Park Entities and (iii) none of the UK/EU Entities, in each case, is or shall be required pursuant to become a U.S. Loan Party. Notwithstanding the foregoing, no Foreign Subsidiary shall be required to become a U.S. Loan Party to the terms of extent resulting in material adverse tax consequences to the Collateral DocumentsBorrowers and their Subsidiaries, as determined in good faith by the Borrowers.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any the Domestic Subsidiaries other than Domestic Subsidiaries whose Equity Interests are owned, directly or indirectly, by a Foreign Subsidiary that is treated as a disregarded entity corporation for U.S. Federal income tax purposes, and (B) the Foreign DREs whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes (purposes, other than any such Domestic Subsidiary, Foreign DRE where the assets of such Foreign DRE include Equity Interests of a “DRE”controlled foreign corporation” (within the meaning of Section 957(a) that holds more of the Code) that, when aggregated with any other Equity Interests held by any other Affiliates of such Foreign DRE would constitute ownership of greater than 65% of the Capital Stock total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote in such controlled foreign corporation (within it being understood that, pursuant to paragraph (a) of this 114 Section, such Foreign DRE shall pledge all of its assets which do not constitute Equity Interests in such controlled foreign corporation and such Equity Interest in the meaning controlled foreign corporation such that, when aggregated with the Equity Interests of Treas. Reg. Section 1.956-2(c)(2)) and 100such controlled foreign corporation pledged by any other Affiliates of the Foreign DRE, the total Equity Interests pledged by the Foreign DRE will constitute a pledge of 65% of the issued and outstanding total combined classes of Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2in such controlled foreign corporation)) of such Domestic Subsidiary) and ; (ii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary that is not a Foreign DRE; and (within the meaning of Treas. Reg. Section 1.956-2(c)(2)iii) and 100% of the issued and outstanding non-voting Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956each First-2(c)(2)) in each Tier Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is not a Loan Party Foreign DRE, to be subject at all times to a valid, perfected first priority perfected Lien security interest (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, howevernotwithstanding the foregoing, this paragraph no U.S. Loan Party shall be required to pledge any Equity Interests of PPC Mexico or its subsidiaries. The Borrowers agree that if (x) the Administrative Agent notifies the Borrower Representative that as a result of a Change in Law there is a reason to believe that a pledge of a greater percentage of any Foreign Subsidiary’s voting Equity Interests or a guarantee by any Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in a “deemed dividend” under Section 956 of the Code or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge and (y) subsequent to the receipt of such notice the Borrower Representative reasonably determines (which determination the Borrower Representative agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Administrative Agent) that a pledge of more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary or a guarantee by such Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in such a “deemed dividend” or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge, the applicable Borrower will promptly pledge such greater percentage of the voting Equity Interests of each such Foreign Subsidiary and cause each such Foreign Subsidiary to provide a guarantee of the U.S. Secured Obligations, in each case to the extent that the foregoing could not reasonably be expected to result in such a “deemed dividend” under Section 956 of the Code or other Tax liability to the Borrowers or any Foreign Subsidiary. Furthermore, the Lenders agree that if (1) the Borrower Representative notifies the Lenders that as a result of a Change in Law there is a reason to believe that a pledge of a lower percentage of any Foreign Subsidiary’s voting Equity Interests would be reasonably necessary in order to avoid there being a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax liability to the Borrowers or any Foreign Subsidiary and (2) subsequent to the receipt of such notice, each Lender reasonably determines (which determination each Lender agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Borrower Representative) that a pledge of less than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary would be reasonably necessary in order to avoid there being a “deemed dividend” under Section 956 of the Code or otherwise triggering material Tax liability to the Borrowers or any Foreign Subsidiary, the applicable Borrower may promptly pledge such lower percentage of the voting Equity Interests of each such Foreign Subsidiary and the Administrative Agent (for the benefit of the Lender Parties) shall promptly release any excess percentage, to the extent necessary such that 115
(c) Subject to Requirements of Law, each Bermuda Borrower and each other Bermuda Loan Party shall cause (i) any Material Subsidiary that is organized under the laws of Bermuda and is created or acquired after the Effective Date, (ii) any Subsidiary that is organized under the laws of Bermuda and has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) above shall be as determined as of the most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) shall not require the Borrower or (iii) any Subsidiary that is organized under the laws of Bermuda that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the foregoing events or determinations, as applicable (which period may be extended by the Administrative Agent in its sole discretion), a Bermuda Loan Guarantor by executing a guarantee agreement that guarantees repayment of the Bermuda Secured Obligations (which guarantee agreement shall be in substantially the form of the Bermuda Guaranty) and a security agreement (which shall, among other things, pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest in all the personal property of each such Subsidiary, the foregoing to be in substantially the form of the Bermuda Pledge Agreement, the Bermuda Security Agreement or the Puerto Rico Security Agreement, as applicable) that secures repayment of the Bermuda Secured Obligations, together with such other documentation and filings that the Administrative Agent may reasonably require in order to perfect its valid, perfected first priority security interest (isubject to Permitted Liens) any Equity Interests of a Subsidiary in the assets subject to the extent a pledge terms of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySecurity Agreement.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(de) Subject to The Borrower Representative will promptly notify the limitations set forth or referred to in this Section 5.11, Administrative Agent if any material assets (including Borrower or any owned other Loan Party acquires any real or personal property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date 25,000,000 (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become are, as a result of actions previously taken, automatically subject to the Lien a valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required LendersLenders and subject to the terms and conditions of this Agreement, the Borrower Borrowers will promptly cause such assets to be subjected to a Lien valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) securing the applicable Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to takecause, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Lienspracticable, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.116
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Restricted Subsidiary that is a Loan Party shall cause (i) each of its Domestic domestic Restricted Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Collateral Agent, for the benefit of the Collateral Agent, the Term Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofTerm Lenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property with a fair market value in excess of $250,000 located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the The Borrower and each Restricted Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic domestic Restricted Subsidiaries and (orii) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Restricted Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes to be treated as a deemed dividend to such foreign Restricted Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any such Domestic Subsidiary, a “DRE”adverse tax consequences) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign foreign Restricted Subsidiary directly owned by the Borrower or any domestic Restricted Subsidiary that is a Loan Party to be subject at all times to (i) a first priority priority, perfected Lien in favor of the Collateral Agent for the benefit of the Term Lenders and (ii) a second priority, perfected Lien in favor of the Collateral Agent for the benefit of the ABL Lenders, in each case pursuant to the terms and conditions of the Loan Documents and the ABL Loan Documents or other security documents documents, subject to the Intercreditor Agreement, as the Term Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Restricted Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Term 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 4.02Article IV, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Term 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having or any interest therein with a fair market value in excess of at least $5,000,000250,000) are acquired by the Borrower or any Restricted Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Term Loan Security Agreement that become subject to the Lien in favor of the Collateral Agent upon acquisition thereofthereof and Excluded Property (as defined in the Term Loan Security Agreement)), the Borrower will notify the Term Administrative Agent and the Term Lenders thereof, and, if requested by the Term Administrative Agent or the Required Term Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Restricted Subsidiary Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Term Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Orchard Supply Hardware Stores Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Loan Party will cause each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)formed, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such acquired or (iii) that qualifies independently as, or is designated by the Borrower or the Administrative Agent as a Material Domestic Subsidiary that was an Immaterial Subsidiary butpursuant to the definition of “Material Domestic Subsidiary”, as in each case after the date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) except any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Excluded Domestic Subsidiary) and (ii) 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 Domestic Subsidiary Holding Company and in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party (except any such Foreign Subsidiary owned by a Domestic Subsidiary Holding Company) to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require . Each Domestic Subsidiary Holding Company that is a Loan Party will cause 100% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its Domestic Subsidiaries (except any Excluded Domestic Subsidiary) to be subject at all times to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or to secure any debt securities Administrative Agent, for the benefit of the Borrower Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or any Subsidiary that would be entitled to such a other security interest would require separate financial statements of a Subsidiary to be filed with documents as the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryAdministrative Agent shall reasonably request.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets (other than with respect to any real property or improvements thereto or any interest therein) to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party to take, such actions (other than with respect to any real property or improvements thereto or any interest therein) as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in paragraph clause (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time During the continuance of a Covenant Trigger Period and from time to time after upon the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% request of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)or the Required Lenders, cause one or more such Domestic Restricted Subsidiaries each Loan Party shall take all actions necessary with respect to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases any requested Account owed to be true.
(f) Notwithstanding it by any provision Governmental Authority of the Loan Documents U.S., or any department, agency, public corporation, or instrumentality thereof to require such Person to make payments under such Accounts to the contraryAdministrative Agent directly during the continuance of an Event of Default, including without limitation, any actions required under the Loan Parties shall not be required to grant a security interest in any personal property Federal Assignment of a type that would not constitute Pledged Collateral or Article 9 Collateral Claims Act of 1940, as amended (each as defined in the Guarantee 31 U.S.C. § 3727 et seq. and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement41 U.S.C. § 15 et seq.)
Appears in 1 contract
Sources: Credit Agreement (Global Brass & Copper Holdings, Inc.)
Additional Collateral; Further Assurances. (a) Subject to any applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary U.S. Loan Party will cause each of its U.S. Domestic Subsidiaries that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (Restricted Subsidiary, other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11)an Excluded Subsidiary, Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a U.S. Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person U.S. Domestic Subsidiary (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral. Subject to any applicable Requirement of Law, on such terms as may be required pursuant the Canadian Borrower will cause each of its Subsidiaries, other than an Excluded Subsidiary, formed or acquired after the date of this Agreement to the terms become a Canadian Loan Party by executing a guaranty of the Collateral DocumentsCanadian Obligations.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic other than an Excluded Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary or Excluded Subsidiary directly owned by such Borrower in each case, so long as the Borrower or any Subsidiary that is a Loan Party ability of the Lenders and the other Secured Parties to be paid in full will not be impaired, to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each (i) U.S. Loan Party will, and will cause each Restricted Subsidiary that is a of such U.S. Loan Party (other than Excluded Subsidiaries), and (ii) Canadian Loan Party will, and will cause each Restricted Subsidiary of such Canadian Loan Party (other than Excluded Subsidiaries) to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan PartiesApplicable Borrowers (subject to the limitations of Section 9.23).
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having other than material assets of a fair market value of at least $5,000,000type that would constitute Excluded Collateral) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral U.S. Security Agreement or the Canadian Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations or Canadian Secured Obligations, as the case may be, and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan PartiesApplicable Borrowers.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the each Borrower and each Subsidiary that is a U.S. Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Material Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed created or acquired after the Second Restatement Effective Date, (ii) any Subsidiary that has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, above shall be as determined as of the end most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) or (iii) any Domestic Subsidiary or Foreign DRE whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the most recently ended fiscal quarter of the Borrower has ceased foregoing events or determinations, as applicable (which period may be extended, for a period not to qualify as an Immaterial Subsidiaryexceed 60 days, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) ), a U.S. Loan Party by executing a the Joinder Agreement in substantially the form set forth as Exhibit D L hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a U.S. Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agentwill, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect relating to pledges of Equity Interests set forth in paragraph (b) of this Section 5.11 and 5.13, grant Liens to the Administrative Agent (for the benefit of the Lender Parties) in any other limitations set forth in the Guarantee and Collateral Agreement) property of such U.S. Loan Party which constitutes Collateral. Notwithstanding the foregoing, on such terms as may neither PPC Mexico nor any of PPC Mexico’s subsidiaries is or shall be required pursuant to the terms of the Collateral Documentsbecome a U.S. Loan Party.
(b) HoldingsTo secure the prompt payment and performance of all the U.S. Secured Obligations, the each Borrower and each Subsidiary that is a U.S. Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any the Domestic Subsidiaries other than Domestic Subsidiaries whose Equity Interests are owned, directly or indirectly, by a Foreign Subsidiary that is treated as a disregarded entity corporation for U.S. Federal income tax purposes, and (B) the Foreign DREs whose Equity Interests are not held directly or indirectly by a Foreign Subsidiary that is treated as a corporation for U.S. federal income tax purposes (purposes, other than any such Domestic Subsidiary, Foreign DRE that is acquired after the Effective Date where the assets of such Foreign DRE include Equity Interests of a “DRE”controlled foreign corporation” (within the meaning of Section 957(a) that holds more of the Code) that, when aggregated with any other Equity Interests held by any other Affiliates of such Foreign DRE would constitute ownership of greater than 65% of the Capital Stock total combined classes of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled to vote in such controlled foreign corporation (within it being understood that, pursuant to paragraph (a) of this Section, such Foreign DRE shall pledge all of its assets which do not constitute Equity Interests in such controlled foreign corporation and such Equity Interest in the meaning controlled foreign corporation such that, when aggregated with the Equity Interests of Treas. Reg. Section 1.956-2(c)(2)) and 100such controlled foreign corporation pledged by any other Affiliates of the Foreign DRE, the total Equity Interests pledged by the Foreign DRE will constitute a pledge of 65% of the issued and outstanding total combined classes of Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2in such controlled foreign corporation)) of such Domestic Subsidiary) and ; (ii) 65% of the issued and outstanding Equity Interests constituting the total combined classes of Equity Interests entitled to vote in each First-Tier Foreign Subsidiary that is not a Foreign DRE; and (within the meaning of Treas. Reg. Section 1.956-2(c)(2)iii) and 100% of the issued and outstanding non-voting Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956each First-2(c)(2)) in each Tier Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is not a Loan Party Foreign DRE, to be subject at all times to a valid, perfected first priority perfected Lien security interest (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, howevernotwithstanding the foregoing, this paragraph no U.S. Loan Party shall be required to pledge any Equity Interests of PPC Mexico or its subsidiaries. The Borrowers agree that if (w) the Administrative Agent notifies the Borrower Representative that as a result of a Change in Law there is a reason to believe that a pledge of a greater percentage of any Foreign Subsidiary’s voting Equity Interests or a guarantee by any Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in a “deemed dividend” under Section 956 of the Code or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge and (x) subsequent to the receipt of such notice the Borrower Representative reasonably determines (which determination the Borrower Representative agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Administrative Agent) that a pledge of more than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary or a guarantee by such Foreign Subsidiary of the U.S. Secured Obligations could not reasonably be expected to result in such a “deemed dividend” or any other Tax liability to the Borrowers or any Foreign Subsidiary which would not have otherwise resulted absent such pledge, the applicable Borrower will promptly pledge such greater percentage of the voting Equity Interests of each such Foreign Subsidiary and cause each such Foreign Subsidiary to provide a guarantee of the U.S. Secured Obligations, in each case to the extent that the foregoing could not reasonably be expected to result in such a “deemed dividend” under Section 956 of the Code or other Tax liability to the Borrowers or any Foreign Subsidiary. Furthermore, the Lenders agree that if (y) the Borrower Representative notifies the Lenders that as a result of a Change in Law there is a reason to believe that a pledge of a lower percentage of any Foreign Subsidiary’s voting Equity Interests would be reasonably necessary in order to avoid being a “deemed dividend” under Section 956 of the Code and (z) subsequent to the receipt of such notice, each Lender reasonably determines (which determination each Lender agrees to consider, in consultation with its counsel and other tax advisors, promptly following receipt of such notice from the Borrower Representative) that a pledge of less than 65% of the total combined voting power of all classes of Equity Interests entitled to vote of such Foreign Subsidiary would be reasonably necessary in order to avoid being a “deemed dividend” under Section 956 of the Code, the applicable Borrower may promptly pledge such lower percentage of the voting Equity Interests of each such Foreign Subsidiary and the Administrative Agent (for the benefit of the Lender Parties) shall promptly release any excess percentage, to the extent necessary such that the foregoing would avoid being a “deemed dividend” under Section 956 of the Code.
(c) Subject to Requirements of Law, each Bermuda Borrower and each other Bermuda Loan Party shall cause (i) any Material Subsidiary that is organized under the laws of Bermuda and is created or acquired after the Effective Date, (ii) any Subsidiary that is organized under the laws of Bermuda and has otherwise become a Material Subsidiary after the Effective Date (it being understood that a Subsidiary’s status as a Material Subsidiary for the purposes of clauses (i) and (ii) above shall be as determined as of the most recent date upon which financial statements have been required to be delivered pursuant to Section 5.01(a) or (b)) shall not require the Borrower or (iii) any Subsidiary that is organized under the laws of Bermuda that incurs any Indebtedness for borrowed money (other than intercompany Indebtedness) or Guarantees any such Indebtedness to become, not later than 45 days after the occurrence of any of the foregoing events or determinations, as applicable (which period may be extended, for a period not to exceed 60 days, by the Administrative Agent in its sole discretion), a Bermuda Loan Party by executing a guarantee agreement that guarantees repayment of the Bermuda Secured Obligations (which guarantee agreement shall be in substantially the form of the Bermuda Guaranty) and a security agreement (which shall, among other things, pledge 100% of the Equity Interests in each such Subsidiary and grant a security interest in all the personal property of each such Subsidiary, the foregoing to be in substantially the form of the Bermuda Pledge Agreement, the Bermuda Security Agreement or the Puerto Rico Security Agreement, as applicable) that secures repayment of the Bermuda Secured Obligations, together with such other documentation and filings that the Administrative Agent may reasonably require in order to perfect its valid, perfected first priority security interest (isubject to Permitted Liens) any Equity Interests of a Subsidiary in the assets subject to the extent a pledge terms of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySecurity Agreement.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties. To the extent that any Loan Party is required to pledge newly created, issued or acquired Equity Interests of any Subsidiary or Affiliate pursuant to the Loan Documents after the Effective Date, such Loan Party shall cause such Subsidiary (or shall use commercially reasonable efforts to cause such Affiliate) to issue such Equity Interests in certificated form, and in each case such Loan Party shall deliver such certificated Equity Interests to the Administrative Agent in accordance with Section 4.01(p).
(de) Subject to The Borrower Representative will promptly notify the limitations set forth or referred to in this Section 5.11, Administrative Agent if any material assets (including Borrower or any owned other Loan Party acquires any real or personal property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date 10,000,000 (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become are, as a result of actions previously taken, automatically subject to the Lien a valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of the Administrative Agent (for the benefit of the Lender Parties) upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required LendersLenders and subject to the terms and conditions of this Agreement, the Borrower Borrowers will promptly cause such assets to be subjected to a Lien valid, perfected first priority security interest or mortgage lien (subject to Permitted Liens) in favor of Administrative Agent (for the benefit of the Lender Parties) securing the applicable Secured Obligations and will take, and cause the applicable Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(ef) IfWith respect to each Specified Property, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not applicable Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required will grant to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent (for the benefit of the Lender Parties) a valid, perfected first priority security interest and mortgage lien (subject to Permitted Liens) in such Specified Property in the event that (i) after the first anniversary of the Effective Date, the Required Lenders may so request in their sole discretion or (ii) the Administrative Agent, in its sole discretion)Permitted Discretion, cause one may so request if (A) any portion of such Specified Property that was designated as “for sale” is no longer for sale or more actively being sold, or (B) any portion of such Domestic Restricted Subsidiaries to become additional Loan Parties Specified Property that was designated as idled becomes operational. Any such grant shall be completed within four months following the occurrence of any event described in clause (notwithstanding that such Domestic Restricted Subsidiaries arei) or (ii) above, individually, Immaterial Subsidiaries) such that by the foregoing condition ceases to be true.
(f) Notwithstanding any provision execution and delivery of the applicable Loan Documents to Party of a Mortgage, UCC-1 Financing Statement and such other documents, and taking such other actions, in each case as specified in Section 4.01(s). Notwithstanding the contraryforegoing, the Loan Parties shall not be required to grant a any such security interest and mortgage lien in any personal property Specified Property having an appraised value of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementless than $10,000,000.
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Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a Loan Party shall promptly cause (i) each of its Domestic Subsidiaries (other than any Immaterial Material Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed created or acquired after the Second Restatement Effective Date and (ii) any such Domestic Subsidiary that was an Immaterial has otherwise become a Material Subsidiary but, as of after the end of the most recently ended fiscal quarter of the Borrower has ceased Effective Date to qualify as an Immaterial Subsidiary, to (A) become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”)) and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the Administrative Agent reasonably deems necessary for such Material Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected security interest (with the priority required by the Intercreditor Agreement) in the Collateral described in such Collateral Document with respect to such Material Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties), in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including, subject to the terms Intercreditor Agreement, any parcel of real property located in the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will will, to the extent required under the applicable Collateral Documents, cause (i) 100i)100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a such Loan Party to be subject at all times to a first priority perfected Lien (with the priority required by the Intercreditor Agreement) in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each of its Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties. In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the Administrative Agent granted under any Collateral Document in any Intellectual Property, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold intereststhereon or interest therein, other than any real property that is a hog farm with a Gross PPE of less than $3,000,000 or any other type of real property (including processing plants) (but only those having with a fair market value of at least less than $5,000,00010,000,000) are acquired by the Borrower Company or any Subsidiary that is a other Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Administrative Agent pursuant to the Security Agreement upon acquisition thereof), the Borrower Company will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower Company will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If. With respect to any real property or improvements thereon or interest therein, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise as soon as practicable but in the aggregate no event more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 60 days after the date by of the acquisition of such property, which financial statements for such quarter are required to period may be delivered pursuant to this Agreement (or such later date as agreed to extended by the Administrative Agent in its sole reasonable discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Company shall, or shall cause the appropriate Loan Parties shall not be Party to, execute and deliver the instruments and documents required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to under Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement5.14.
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Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the The Borrower and each Subsidiary that is a Loan Party shall cause shall:
(i) cause each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise to the extent provided in paragraph (e) of this Section 5.115.10(a)(iv)), Unrestricted Subsidiary whether now existing or Securitization Entities) formed hereafter acquired or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryformed, to become a Loan Party within 20 Business Days Guarantor by executing and delivering to the Administrative Agent the Guaranty Agreement or a supplement thereto, as applicable, in the form specified therein, whereby such Subsidiary shall guarantee the Secured Obligations;
(ii) (A) cause each Subsidiary (except to the extent provided in Section 5.10(a)(iv)), whether now existing or hereafter acquired or formed, to become a grantor under the Security Agreement by executing and delivering to the Administrative Agent the Security Agreement or a supplement thereto in the form specified therein, as applicable, whereby such later date as agreed Subsidiary shall grant a security interest to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of its assets constituting Collateral under the rights, benefits, dutiesSecurity Agreement to secure the Secured Obligations, and obligations (B) take whatever action (including delivering properly completed UCC financing statements) that may be necessary or advisable in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens opinion of the Administrative Agent to vest in the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property a first priority perfected security interest (subject to the limitations Liens permitted by Section 6.02) in the assets of such Subsidiary purported to be subject to the Security Agreement;
(iii) if any such Subsidiary required to comply with respect to Equity Interests set forth in paragraph clauses (bi) or (ii) of this Section 5.11 and owns or leases any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateralreal property, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any deliver to the Administrative Agent Mortgages covering such Domestic Subsidiaryreal property, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all deliver to the assets of Administrative Agent such other documents with respect to such real property as the Administrative Agent shall request and deliver to the Administrative Agent current surveys for such real property acceptable to the Administrative Agent and by a land surveyor duly registered and licensed in the States in which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries the property described in this clause (B)such surveys is located and acceptable to the Administrative Agent, 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)) of such Domestic Subsidiary) and (iiC) 65% of the issued take all such actions 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Agent all such other documents, agreements and instruments, agreements, opinions and will take or cause certificates with respect to be taken such further actions (including real property that 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the Administrative Agent may, from time to time, shall reasonably request to carry out create in favor of the terms and conditions Administrative Agent, for the benefit of Secured Parties, a valid and, subject to any applicable filings and/or recordings, perfected first priority security interest (subject to the Liens permitted by Section 6.02) in such real property;
(iv) notwithstanding anything to the contrary in this Agreement or any other Loan Document, (A) any Equity Interests required to be pledged pursuant to the Security Agreement shall be limited, and the other Loan Documents and to ensure perfection and priority Collateral shall be limited, in the case of the Liens created or intended to be created Equity Interests issued by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after “controlled foreign corporation” (as defined in Section 957(a) of the Second Restatement Date Code) (other such Subsidiary, a “CFC”) or a Foreign Subsidiary Holding Company, to (1) the Voting Stock of any such CFC or Foreign Subsidiary Holding Company representing 65% of the total voting power of all outstanding Voting Stock of such CFC or Foreign Subsidiary Holding Company or , in the case of a Foreign Subsidiary Holding Company, such higher percentage that is reasonably expected not to cause a deemed pledge of Voting Stock of any CFC owned by such Foreign Subsidiary Holding Company representing more than assets 65% of the total voting power of all outstanding stock of such CFC and (2) 100% of the Equity Interests of any such CFC or Foreign Subsidiary Holding Company not constituting Collateral under Voting Stock of such CFC or Foreign Subsidiary Holding Company, except that any such Equity Interests constituting “stock entitled to vote” within the Guarantee and Collateral Agreement that become subject meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as Voting Stock for purposes of this Section 5.10(a), (B) any Equity Interests of an Excluded Disregarded Entity required to be pledged pursuant to the Lien Security Agreement shall be limited, and the Collateral shall be limited in favor the case of Equity Interests issued by an Excluded Disregarded Entity, to 65% of such Equity Interests or such higher percentage that is reasonably expected not to cause a deemed pledge of Voting Stock of any CFC owned by such entity representing more than 65% of the Agent upon acquisition thereof)total voting power of all outstanding Voting Stock of such CFC, the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to (C) no Subsidiary that is a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as CFC shall be necessary required to comply with clauses (i) or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (cii) of this SectionSection 5.10(a), all at the expense or pledge Equity Interests of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted its Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower Joint Ventures, until such time as such Subsidiary is no longer a CFC, and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding D) no Subsidiary that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties is a Foreign Subsidiary Holding Company shall not be required to grant a security interest in any personal property comply with clause (i) of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.this
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement (including, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days forty five days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) |US-DOCS\159511341907.1259.8|| after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, Holdings, the Borrower and each other Loan Party shall cause each of its Material Domestic Subsidiaries formed or acquired after the date of this Agreement (iiincluding, without limitation, upon the formation of any Subsidiary pursuant to a division as set forth in Section 1.07) will simultaneously therewith in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within forty five days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) ), Holdings, the Borrower and each other Material Domestic Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Domestic Subsidiary treated as that is a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic SubsidiaryFSHCO) and (ii) 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)) of each Subsidiary that is a CFC or FSHCO (including any Subsidiary that becomes a CFC or FSHCO after the Effective Date), in each Foreign Subsidiary case, directly owned by the Borrower or any Material Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Notwithstanding the foregoing or anything else herein or in any other Loan Document to the contrary, howeverin no event shall (A) the assets of any CFC or FSHCO constitute security or secure, this paragraph or such assets or the proceeds of such assets be required to be available for, payment of the Obligations, (bB) shall not require more than sixty-five percent (65%) of the issued and outstanding Equity Interests entitled to vote of any CFC or FSHCO, in each case, owned directly by the Borrower or any Material Domestic Subsidiary be required to grant a security interest in be pledged to secure the Obligations or (iC) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests any CFC or FSHCO, in favor of the Agent or to secure any debt securities of each case, not owned directly by the Borrower or any Material Domestic Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary required to be filed with pledged to secure the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryObligations.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject ; provided that, notwithstanding anything else contained herein or in any other Loan Document to the limitations set forth or referred contrary, (x) the foregoing shall not apply to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is not a Material Domestic Subsidiary or property of any Subsidiary that is not Material Domestic Subsidiary or any Excluded Property (as defined in the Security Agreement), (y) any such documents and deliverables shall be governed by New York law and (z) no perfection actions by “control” (except with respect to Equity Interests and certain debt instruments), leasehold mortgages or landlord waivers, estoppels or collateral access letters shall be required to be |US-DOCS\159511341907.1259.8|| entered into hereunder or under any other Loan Document. Notwithstanding any provision set forth in this Agreement to the contrary, in no event shall any Loan Party after be required to (A) make any filings or take any other action to record or perfect the Second Restatement Date Administrative Agent’s interest in any intellectual property outside the U.S. or (other than B) take any actions in any non-U.S. jurisdiction or that are required by the laws of any non-U.S. jurisdiction in order to (x) create any security interests in such assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor located or titled outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent U.S. or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and (y) perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiessecurity interests.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 1 contract
Sources: Credit Agreement (Integral Ad Science Holding Corp.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days thirty (30) days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a Joinder Agreement joinder agreement substantially in substantially the form set forth as of Exhibit D hereto C (the a “Joinder Agreement”); provided, that, (i) notwithstanding the foregoing, any Division Successor that becomes a Material Domestic Subsidiary as a result of a Division, shall become a Loan Party and deliver a Joinder Agreement on the effective date of the applicable Division and (ii) this Section 5.09 shall not be deemed to exclude (or release) any Domestic Subsidiary which is a Loan Guarantor in the case of a disposition of a portion of the Equity Interests in such Loan Guarantor as a result of (A) the disposition or issuance of Equity Interests of such Domestic Subsidiary in either case to an Affiliate that is not the Borrower or a Subsidiary, (B) any transaction entered into primarily in contemplation of such Domestic Subsidiary’s ceasing to constitute a Loan Party or (C) the disposition or issuance of Equity Interests of such Domestic Subsidiary for materially less than the fair market value of such shares as reasonably determined by the Borrower. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within thirty (ii30) will simultaneously therewith days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests owned by it to be subject at all times to a first priority, perfected Lien in favor of each the Administrative Agent pursuant to the terms and conditions of its Domestic Subsidiaries (orthe Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, in that until an Event of Default has occurred and is continuing and thereafter until otherwise required by the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (Administrative Agent, if any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65Lien with respect to 100% of the issued and outstanding voting Equity Interests of any Foreign Subsidiary that is a CFC or of any Foreign Subsidiary Holding Company would reasonably be expected by the Borrower in consultation with the Administrative Agent to result in material adverse U.S. federal tax consequences pursuant to Section 956 of the Code or otherwise, the pledge of such Equity Interests that are 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 shall be limited to vote such lesser amount (within the meaning of Treas. Reg. Section 1.956-2(c)(2)in no event less than 65%) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would not reasonably be entitled expected to result in such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiaryconsequences.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
. Notwithstanding the foregoing no Loan Party shall be required (di) Subject to take any such action if the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the limitations set forth benefit to the Lenders of the security to be afforded thereby (ii) to authorize or referred to file any document or registration in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value jurisdiction located outside of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date United States (other than with respect to a Voluntary Foreign Guarantor) or (iii) to take any action with respect to any assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor located outside of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected United States (other than with respect to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan PartiesVoluntary Foreign Guarantor).
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 1 contract
Sources: Credit Agreement (Flywire Corp)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with With respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having fixtures located on owned real property, in each case with a purchase price or a fair market value of at least $5,000,0001,000,000, in which either Borrower, JCSA, a Domestic Subsidiary of JCI, any Subsidiary of DCJ, or any Subsidiary of JCSA acquires ownership rights at any time after the Closing Date, promptly grant to the Collateral Agent, for the benefit of the Lenders, a Lien of record on all such owned real property and fixtures, upon terms reasonably satisfactory in form and substance to the Collateral Agent and in accordance with any applicable requirements of any Governmental Authority (including any appraisals of such property under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 which the Collateral Agent reasonably deems to be required by law), provided that (i) are acquired nothing in this Section 5.11(a) shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Security Documents which would attach or be perfected pursuant to the terms thereof without action by either Borrower, any of its Subsidiaries, JCSA, any of its Subsidiaries, or any other Person and (ii) no such Lien shall be required to be granted as contemplated by this Section 5.11(a) on any owned real property or fixtures the acquisition of which is financed, or is to be financed within any time period permitted by Section 6.01, until such Indebtedness is repaid in full (and not refinanced as permitted by Section 6.01) or, as the case may be, the Borrowers or JCSA determine not to proceed with such financing or refinancing. In connection with any such grant to the Collateral Agent, for the benefit of the Lenders, of a Lien of record on any such real property in accordance with this Section 5.11, the applicable Borrower, JCSA or such Subsidiary shall deliver or cause to be delivered to the Collateral Agent any surveys, title insurance policies, environmental reports and other documents in connection with such grant of such Lien obtained by it in connection with the acquisition of such ownership rights in such real property or as the Collateral Agent shall reasonably request (in light of the value of such real property and the cost and availability of such surveys, title insurance policies, environmental reports and other documents and whether the delivery of such surveys, title insurance policies, environmental reports and other documents would be customary in connection with such grant of such Lien in similar circumstances).
(b) With respect to any Person that, subsequent to the Closing Date, becomes (i) a Domestic Subsidiary of Parent, (ii) a Foreign Subsidiary Holdco or (iii) a Subsidiary of DCJ or JCSA, promptly upon the request of the Administrative Agent: (x) execute and deliver to the Administrative Agent, for the benefit of the Secured Parties, a new pledge agreement or a supplement to the Pledge Agreement, the Mexican Pledge Agreement and/or the Mexican Security Agreement, as the case may be, as the Administrative Agent shall reasonably deem necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on the Capital Stock of such Subsidiary which, with respect to any Domestic Subsidiary, is owned by Parent or any of its Subsidiaries or, with respect to any Subsidiary of DCJ or JCSA, owned by DCJ, JCSA or any of their respective Subsidiaries, (y) deliver to the Collateral Agent the certificates (if any) representing such Capital Stock, together with undated stock powers
(A) to become a party to the applicable Security Documents and Guarantee Agreements, in each case pursuant to documentation which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions reasonably deemed by the Borrower Administrative Agent to be necessary or reasonably advisable to cause the Lien created by the applicable Security Documents to be duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent.
(c) With respect to any Person that, subsequent to the Closing Date, becomes a Foreign Subsidiary of, and which has Voting Stock which is owned directly by, (i) JCI or (ii) a Domestic Subsidiary of Parent, promptly upon the request of the Administrative Agent: (A) JCI or such Domestic Subsidiary shall execute and deliver to the Administrative Agent a new Pledge Agreement and/or a new Mexican Pledge Agreement or a supplement to the Pledge Agreement, the Mexican Pledge Agreement and/or the Mexican Security Agreement, as the case may be, as the Administrative Agent shall reasonably deem necessary or reasonably advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a Lien on the Capital Stock of such Foreign Subsidiary which is owned directly by JCI or any such Domestic Subsidiary of Parent (provided that in no event shall more than 65% of the Voting Stock of any such Foreign Subsidiary be required to be so pledged) and (ii) to the extent reasonably deemed advisable by the Administrative Agent to perfect such security interest, deliver to the Administrative Agent certificates (if any) representing such Voting Stock, together with undated stock powers executed and delivered in blank or, with respect to certificates representing Capital Stock of a Foreign Subsidiary that is a Loan Party after the Second Restatement Date Mexican Subsidiary, duly endorsed "in property" (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien en propiedad) in favor of the Agent upon acquisition thereofTrustee, or duly endorsed "in pledge" (en prenda), as applicable, in any case, by a duly authorized officer of JCI or such Domestic Subsidiary of Parent, as the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Partiescase may be.
(ed) IfNotwithstanding anything to the contrary contained herein, at any time no Subsidiary shall be required to comply with the provisions of this Section 5.11 until such date as either (i) the consolidated gross revenues of such Subsidiary and from time to time after the Second Restatement Date, Domestic Restricted its Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of for the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the completed period of four consecutive fiscal quarters as or (ii) the consolidated assets of the end of the most recently ended fiscal quarter of the Borrowersuch Subsidiary and its Subsidiaries, then the Borrower shall, not later than 45 days exceed $2,500,000 (it being understood that any such Subsidiary which achieves such assets or revenues after the date hereof shall be deemed, for purposes of this Section 5.11 only, to have been newly acquired by Parent or the applicable Borrower on the date upon which financial statements for such quarter assets or revenues, as the case may be, are required to achieved).
(e) No later than thirty (30) days following the Closing Date (which period of time may be delivered pursuant to this Agreement (or such later date as agreed to extended by the Administrative Agent in its sole reasonable discretion), Parent agrees (i) to cause one Distribuidora Venus, S.A. de C.V. to transfer the cosmetics manufacturing plant located in ▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ de Mexico (the "Manufacturing Plant") to BankBoston S.A., Institucion de Banca Multiple, or more such Domestic Restricted Subsidiaries another financial or trust institution reasonably acceptable to become additional Loan Parties Parent and the Administrative Agent, in trust pursuant to an irrevocable management trust agreement governed by the laws of Mexico (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiariesthe "Management Trust Agreement") such that in form and substance reasonably acceptable to Parent and the foregoing condition ceases Administrative Agent and (ii) to do or cause to be true.
done all such other acts, and to execute and deliver such documents and take such other action as the Administrative Agent deems reasonably necessary or advisable to perfect the transfer and assignment to the Trustee (facting in such capacity under the Mexican Security Agreement) Notwithstanding of any provision and all rights of Distribuidora Venus, S.A. de C.V., in its capacity as settlor and beneficiary under the Management Trust Agreement (including, without limitation, its reversion rights (derechos de reversion) thereunder) for the purposes set forth in the Mexican Security Agreement, in each case, upon terms reasonably satisfactory in form and substance to the Administrative Agent and in accordance with any applicable requirements of any Governmental Authority, provided that nothing in this Section 5.11(e) shall defer or impair the attachment or perfection of any security interest in any Collateral covered by any of the Loan Security Documents which would attach or be perfected pursuant to the contraryterms thereof without action by Parent, either Borrower or any of their respective Subsidiaries, or any other Person, as the case may be; provided, however, that in the event that any recordation fees and/or taxes due and payable in accordance with applicable law by Distribuidora Venus, S.A. de C.V. or any Loan Party as a result of the creation of the Management Trust Agreement or any of the actions undertaken pursuant to item (ii) above materially exceed the sum of any recordation fees and/or taxes that have been paid by any Loan Party in connection with real estate transferred directly to the Trustee pursuant to the Mexican Security Agreement on or about the Closing Date, the Loan Parties shall not be required hereby agree to work together in good faith with the Administrative Agent to devise and implement a reasonable alternative structure with respect to the Manufacturing Plant to grant to the Collateral Agent a security interest in any personal property first priority Lien for the benefit of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined the Secured Parties in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementManufacturing Plant.
Appears in 1 contract
Sources: Credit Agreement (Dirsamex Sa De Cv)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, the Borrower and except as otherwise permitted hereunder (i) cause each Subsidiary that is of the Company (other than a Foreign Subsidiary and other than an Excluded Subsidiary or a Designated Subsidiary) to become or remain a Loan Party shall and a Guarantor of all of the Obligations and (ii) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesa Foreign Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D B hereto (the “"Joinder Agreement”"). Upon execution and delivery thereof, each such Person (i) shall automatically become a Domestic Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents, and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Ex-Im Revolving Lender in any property of such Loan Party which constitutes Collateral (other than Equipment and Real Property).
(b) Each Canadian Loan Party now or hereafter formed or acquired shall guaranty the Foreign Obligations pursuant to a Joinder Agreement or a separate Loan Guaranty and grant Liens to the Canadian Agent, for the benefit of the Canadian Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofCanadian Revolving Lenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Canadian Loan Party which constitutes Collateral, on excluding Real Property. During the European Availability Period, each European Loan Party now or hereafter formed or acquired shall guaranty the Foreign Obligations pursuant to a Joinder Agreement or a separate Loan Guaranty and grant Liens to the European Agent, for the benefit of the European Agent and the European Revolving Lenders, in any property of such terms as may European Loan Party which constitutes Collateral, excluding Real Property.
(c) Holdings will cause 100% of the issued and outstanding Equity Interests of the Company to be required subject at all times to a first priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, each pursuant to the terms and conditions of the Collateral Documents.
(b) Holdings, Loan Documents or other security documents as the Administrative Agent shall reasonably request. Each Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, and all other Subsidiaries in the case of Equity Interests owned by (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% the Canadian Borrower and each of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or its Subsidiaries (B) any Domestic Subsidiary all or substantially all the assets European Borrower and each of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiarytheir respective Subsidiaries) and (ii) 65% (or such greater percentage that, due to a change in an applicable law after the Effective Date, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for United States federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's United States parent and (2) could not reasonably be expected to cause any material adverse tax consequences) 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 Foreign Subsidiary directly owned by the Borrower Company or any Subsidiary that is a Loan Party of its Domestic Subsidiaries to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent and a second priority, perfected Lien in favor of the Ex-Im Revolving Lender, in each case pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including excluding any owned real property Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000interests therein, which are addressed in Section 5.16) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement Security Agreements that become subject to the Lien in favor of under the Agent Security Agreements upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower Borrowers will cause such assets to be subjected to a Lien securing the Secured Obligations, the Canadian Obligations, the European Obligations and/or the Ex-Im Obligations, as applicable, and will take, and cause the other Loan Parties that are Subsidiaries 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 (cd) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.115.13(b), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) other than any Excluded Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes and any Excluded Subsidiary pursuant to clause (any such Domestic Subsidiary, a “DRE”b) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiarydefinition thereof) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Domestic Subsidiary that is a Loan Party FSHCO (other than any Excluded Subsidiary pursuant to clause (b) of the definition thereof) and each Foreign Subsidiary that is a First-Tier Foreign Subsidiary (other than any Excluded Subsidiary pursuant to clause (b) of the definition thereof), to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; providedprovided that, however, this paragraph (b) shall not require each Foreign Loan Party will cause 100% of the Borrower or any Subsidiary to grant a security interest in (i) any issued and outstanding Equity Interests of each of its direct Foreign Subsidiaries to become subject to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities the extent sufficient to comply with Section 5.13(b).
(b) Notwithstanding the foregoing clauses of this Section 5.13, if as of the Borrower or last day of any Subsidiary that would be entitled to such a security interest would require separate fiscal quarter of the Parent, the aggregate EBITDA of all Loan Parties represents less than 95% of the consolidated EBITDA of the Parent and its subsidiaries (excluding, for this purpose, any Person which has negative EBITDA), then the Loan Parties shall, no later than ten (10) Business Days after the date on which financial statements of a Subsidiary for such fiscal quarter are required to be filed delivered pursuant to Section 5.01(b), cause (x) additional Subsidiaries to become Loan Guarantors in accordance with Section 5.13(d)(i) such that the Loan Parties are in compliance with the SEC provisions of Section 5.13(d)(ii) and/or (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (iiy) the Equity Interests in additional Subsidiaries to become subject to a first priority, perfected Lien in favor of any Unrestricted the Administrative Agent in accordance with and subject to the requirements in Section 5.13(d), to the extent necessary for the aggregate EBITDA of the Persons within the Group that neither (A) are Loan Guarantors nor (B) whose Equity Interests are not pledged as Collateral in favor of the Administrative Agent to account for less than 5% of consolidated EBITDA of the Parent and its subsidiaries; provided that EBITDA for all purposes under this Section 5.13(a) shall be calculated for the most recently ended period of four (4) consecutive fiscal quarters of the Parent. At all times, none of the Borrowers, the partners of FICV (Frank’s International Management B.V., Frank’s International LP B.V. and Frank’s International Partners B.V.), Frank’s International, LP, Frank’s International GP, LLC, Blackhawk Intermediate Holdings, LLC, Blackhawk Specialty Tools, LLC and/or Trinity Tool Rentals, L.L.C. shall be treated as an Excluded Subsidiary.. 509265-2130-15343-Active.25699682.17
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party other Group member to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties. Notwithstanding the foregoing, it is agreed and understood that: (i) the Foreign Loan Parties shall not be required to take any actions to perfect security interests in any of their assets outside of the United States other than (A) the pledges of certain Equity Interests specifically granted pursuant to the Collateral Documents or (B) to the extent that the burdens, costs or consequences of carrying out such actions with respect to assets of the Foreign Loan Parties are not deemed to be excessive in view of the benefits to be obtained by the Secured Parties (as so determined by the Administrative Agent); provided, that with respect to perfection of security interests in the Collateral of the Foreign Loan Parties under U.S. law where applicable, such Foreign Loan Parties shall only be required to authorize the filing of UCC-1 financing statements in the Office of the Recorder of Deeds of the District of Columbia naming such Foreign Loan Party as a debtor thereunder; and (ii) the Loan Parties shall not be required to take any additional actions outside the United States to perfect security interests in any Collateral other than: (A) the pledges of certain Equity Interests specifically granted pursuant to the Collateral Documents or (B) to the extent that the burdens, costs or consequences of carrying out such actions with respect to assets of the Loan Parties are not deemed to be excessive in view of the benefits to be obtained by the Secured Parties (as so determined by the Administrative Agent.
(d) Subject The Borrowers shall ensure and procure that:
(i) each Significant Domestic Subsidiary (other than any Excluded Domestic Subsidiary) formed or acquired after the date of this Agreement will accede as a Loan Party by executing and delivering to the limitations set forth Administrative Agent a Joinder Agreement within thirty (30) days (or referred such later date as the Administrative Agent may agree to in its reasonable discretion) of such formation or acquisition. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Guarantor hereunder and thereupon shall have all of the rights, benefits, duties and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, in any property of such Loan Party which constitutes Collateral, owned by any Loan Party; and
(ii) such Persons, designated by the Borrowers, within the Group as are required to ensure that the aggregate EBITDA of all Loan Guarantors and all Persons in which the total Equity Interests of such Person have been pledged as Collateral in favor of the Administrative Agent represents not less than 95% of the consolidated EBITDA (ignoring, for this purpose, any entity which has negative EBITDA) of the Parent and its subsidiaries at any time (the “Minimum Guarantor Coverage Requirement”) shall accede to the Credit Agreement as additional Loan Guarantors and/or have their Equity Interests pledged as Collateral in favor of the Administrative Agent to the extent needed to maintain compliance with this Section 5.115.13(d)(ii) and grant Liens to the Administrative Agent, if for the benefit of the Administrative Agent and the other Secured Parties, in any property of such Loan Party which constitutes Collateral, owned by any Loan Party.
(e) If any material assets (including excluding any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000Excluded Assets) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral U.S. Security Agreement 509265-2130-15343-Active.25699682.17 that become subject to the Lien in favor of under the Agent U.S. Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, and, if reasonably requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (ca) of this Section, all at the expense of the Loan Parties.
(ef) If, at any time and from time to time after the Second Restatement Effective Date, Domestic Restricted Subsidiaries a Loan Party shall acquire or obtain any Inventory that are not contains or bears intellectual property rights licensed to any Loan Parties because they are Immaterial Subsidiaries comprise in Party that may be sold or otherwise disposed of without (i) infringing the aggregate more rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than 7.5% royalties incurred pursuant to the sale of Total Assets as of such Inventory under the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrowercurrent licensing agreement, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required Representative shall provide an annex with each Borrowing Base Certificate delivered to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 5.01(e) immediately following the date that such property is acquired, notifying the Administrative Agent of such acquisition, which annex shall specify reasonable detail (including the Guarantee location, title, patent number(s) and Collateral Agreementissue date) as to the property so acquired and the intellectual property rights licensed to the Loan Party in connection therewith.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and (ii) organized under the laws of the United States, Canada, the Netherlands, Germany, England and Wales, Ireland or, solely to the extent any such Domestic Subsidiary formed or acquired after the date hereof opens any deposit account that was an Immaterial Subsidiary but, as the European Administrative Agent determines is part of the end European Borrower’s cash structure, any other member state of the most recently ended fiscal quarter European Union or Ireland, or, in each case, any political subdivision thereof (within five Business Days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent)
(A) in accordance with the terms of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)) or such other Loan Guaranty in form and substance satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary to grant to such Collateral Agent (for the benefit of the Agents, the applicable Lenders and the applicable Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent Agents, the applicable Lenders and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, applicable Issuing Banks) in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any parcel of real property located in the U.S. owned by such terms as may be required pursuant to the terms of the Collateral DocumentsLoan Party.
(bi) Holdings, the Borrower The Company and each Subsidiary that is a US Loan Party will cause (ia) 100% (or such lesser percentage owned by the Company or such US Loan Party, as applicable) of the issued and outstanding Equity Interests of each of its Domestic direct domestic Subsidiaries and (orb) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) any Domestic such foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic foreign Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) ’s U.S. parent and (ii2) 65% could not reasonably be expected to cause any other material adverse tax consequences) 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 Foreign foreign Subsidiary directly owned by the Borrower Company or any Subsidiary that is a US Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the US Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request and (ii) subject to applicable law, each Subsidiary of the Company that is a Foreign Loan Party (other than any Account Party) will cause 100% of the issued and outstanding Equity Interests of each of its direct Subsidiaries that is organized in the same jurisdiction as such Foreign Loan Party to be subject at all times to a first priority, perfected Lien in favor of the applicable Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, subject to applicable law, each Loan Party will, will and will cause each Subsidiary that is a Loan Party to, to execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each 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 trust, hypothecs and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or any 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 the Loan PartiesParties (including, for the avoidance of doubt, to reflect any change in the Secured Parties hereunder). In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each Collateral Agent filings with any governmental recording or registration office in any jurisdiction required by the Administrative Agent or any Collateral Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the applicable Collateral Agent granted under any Collateral Document in any Intellectual Property.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower Company or any Subsidiary that is a Loan Party (or (x) any deposit accounts opened by any Subsidiary of the Company organized under the laws of any member state of the European Union or (y) any existing deposit accounts of any Subsidiary of the Company organized under the laws of any member state of the European Union are determined by the European Administrative Agent, in its Permitted Discretion, to comprise part of the European Borrower’s cash structure) after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Agents, the applicable Lenders and the applicable Issuing Banks upon acquisition thereof), the Borrower Company will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will promptly cause such assets (in the case of any deposit accounts referred to above, solely to the extent the European Administrative Agent determines such deposit accounts are part of the European Borrower’s cash structure) to be subjected to a Lien securing the applicable Secured Obligations and will take, and cause the its Subsidiaries that are Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or any Collateral Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection and Section 4.01(o), all at the expense of the Loan Parties.
(e) IfFor the purposes of Section 5.14(c) and 5.14(d), at (i) references to the actions and deliverables required under Section 4.01(o)(i) with respect to any time and from time applicable hereafter-acquired property shall be deemed to time after the Second Restatement Daterequire delivery of Mortgages on such property, Domestic Restricted Subsidiaries including evidence that are not Loan Parties because they are Immaterial Subsidiaries comprise a counterpart of such Mortgage has been recorded in the aggregate more than 7.5% of Total Assets as place necessary, in the Administrative Agent’s judgment, to create a valid and enforceable first priority Lien in favor of the end US Collateral Agent for the benefit of the most recently ended fiscal quarter of the Borrower itself and the Restricted Subsidiaries Lenders; (ii) references to “date-down” endorsements (or more than 7.5% of Consolidated EBITDA of modifications) in Section 4.01(o)(ii) shall refer to ALTA or other mortgagee’s title insurance policies, together with such endorsements thereto as may be required by the Borrower applicable Collateral Agent; and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered (iii) Mortgages filed pursuant to this Agreement (or Section 5.14 shall be delivered to the applicable Collateral Agent in conjunction with an ALTA survey prepared of such later date as agreed Mortgaged Property and certified to the applicable Collateral Agent by a surveyor acceptable to the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueAgent.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Claiborne Liz Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its wholly-owned Material Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired on or after the Second Restatement Date date of this Agreement in accordance with the terms of this Agreement and (ii) any such each Subsidiary which hereafter becomes a Material Domestic Subsidiary that was an Immaterial Subsidiary butSubsidiary, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiaryin each case, to become a Loan Party Party, within 20 Business Days thirty (30) days (or such later date as agreed to by the Administrative Agent in its sole discretionmay agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as applicable), by executing a the Joinder Agreement in substantially the form set forth as Exhibit D C hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents Documents.
(b) Subject to applicable law, the Borrower and each other Loan Party shall cause each of its wholly-owned Material Domestic Subsidiaries formed or acquired after the date of this Agreement in accordance with the terms of this Agreement and each Subsidiary who hereafter becomes a Material Domestic Subsidiary, in each case, within thirty (ii30) will simultaneously therewith days (or such later date as soon the Administrative Agent may agree) after the date of such formation or acquisition (or after the date on which such Subsidiary becomes a Material Domestic Subsidiary, as practicable thereafter applicable) to execute a joinder to the Security Agreement, pursuant to which such Material Domestic Subsidiary shall grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(c) Subject to the foregoing clauses (a) and (b) Holdings), the Borrower and each other direct Material Domestic Subsidiary that is of a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its direct Domestic Subsidiaries (orSubsidiaries, in the case of (A) any other than a Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of is a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B)Holding Company, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary that is a CFC (including any Subsidiary that becomes a CFC after the Effective Date) and each Foreign Subsidiary Holding Company, as applicable, in each case, directly owned by the Borrower or any Subsidiary another Loan Party, and (iii) 100% of the issued and outstanding Equity Interests of its Foreign Subsidiaries that is a are corporations but are not CFCs directly owned by the Borrower or another Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 and, to the extent required by the Security Agreement, to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Loan Parties.
(d) Subject to . Notwithstanding the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a foregoing no Loan Party after shall be required (i) to take any such action if the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders thereof, and, if requested by of the Agent or the Required Lenders, the Borrower will cause such assets security to be subjected afforded thereby (ii) to authorize or file any document or registration in a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense jurisdiction located outside of the Loan PartiesUnited States or (iii) to take any action with respect to any assets located outside of the United States.
(e) IfAs promptly as practicable, at and in any event within the time and from time to time periods after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise Effective Date specified in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement Schedule 5.09 (or such later date as agreed to by the Administrative Agent reasonably agrees to in its sole discretionwriting), the Borrower shall deliver, or cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrarydelivered, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral documents or Article 9 Collateral (each as defined in take the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementactions specified on Schedule 5.09.
Appears in 1 contract
Sources: Credit Agreement (Etsy Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, each Loan Party will cause each of its Subsidiaries formed or acquired after the Borrower and each Subsidiary that is date of this Agreement to become a Loan Party shall cause (iother than (x) each of its Domestic any Excluded Subsidiaries (other than any Immaterial CFC Subsidiary) (unless such Excluded Subsidiary (except as otherwise provided in paragraph (eceases to be an Excluded Subsidiary) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (iiy) any CFC Subsidiary to the extent such Domestic CFC Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become becoming a Loan Party would cause materially adverse tax consequences to the Borrower), within 20 Business Days (30 days of formation or acquisition of such later date as agreed to by the Administrative Agent in its sole discretion) Subsidiary, by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to including any parcel of real property located in the terms of the Collateral DocumentsU.S. owned by any Loan Party.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries; provided that to the extent such pledges with respect to any CFC Subsidiary would cause materially adverse tax consequences, in the case of such pledges will be limited to (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) and (B) 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 Foreign such CFC Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require the Borrower or any Subsidiary to Holdings will pledge and grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Administrative Agent or to secure any debt securities in 100% of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the issued and outstanding Equity Interests of any Unrestricted Subsidiarythe Borrower.
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having with a fair market value in excess of at least $5,000,00010,000,000 or improvements thereto or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) promptly, notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations within 30 days of acquisition thereof and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (CompoSecure, Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Company and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date date of this Agreement and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as organized under the laws of the end United States, Canada, England and Wales or Ireland, or, in each case, any political subdivision thereof (within five Business Days after such formation or acquisition, or such longer period as may be agreed to by the Administrative Agent)
(A) in accordance with the terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a the Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)) or such other Loan Guaranty in form and substance reasonably satisfactory to the Administrative Agent and (B) to execute and deliver such amendments, supplements or documents of accession to any Collateral Documents as the applicable Collateral Agent deems necessary for such new Subsidiary to grant to such Collateral Agent (for the benefit of the Agents, the applicable Lenders and the applicable Issuing Banks) a perfected first priority security interest in the Collateral described in such Collateral Document with respect to such new Subsidiary. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, applicable Collateral Agent (in each case for the benefit of the Agent Agents, the applicable Lenders and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereof, applicable Issuing Banks) in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any parcel of real property located in the U.S. owned by such terms as may be required pursuant to the terms Loan Party with a fair market value in excess of the Collateral Documents$5,000,000.
(bi) Holdings, the Borrower The Company and each Subsidiary that is a US Loan Party and that either (x) is not directly or indirectly owned by a CFC or (y) provides a guarantee with respect to the 2011 Notes, the 2012 Add-On Notes, any Additional Notes or any refinancing of any of the foregoing, will cause (ia) 100% (or such lesser percentage owned by the Company or such US Loan Party, as applicable) of the issued and outstanding Equity Interests of each Subsidiary directly owned by the Company or any such US Loan Party (other than any such Subsidiary that is (x) a CFC or a Flow-through Entity and (y) does not provide a guarantee with respect to the 2011 Notes, the 2012 Add-On Notes, any Additional Notes or any refinancing of its Domestic Subsidiaries any of the foregoing) and (orb) 65% (or such greater percentage that, due to a change in applicable law after the case date hereof, (1) could not reasonably be expected to cause the undistributed earnings of (A) such CFC or any Domestic Subsidiary treated of such Flow-through Entity as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), CFC’s or (B) any Domestic Subsidiary all Flow-through Entity’s direct or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) indirect U.S. owner and (ii2) 65% could not reasonably be expected to cause any other material adverse tax consequences) 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 Foreign Subsidiary that is (x) a CFC or a Flow-through Entity directly owned by the Borrower Company or any Subsidiary that is a US Loan Party and (y) does not provide a guarantee with respect to the 2011 Notes, the 2012 Add-On Notes, any Additional Notes or any refinancing of any of the foregoing, to be subject at all times to a first priority priority, perfected Lien in favor of the US Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request and (ii) subject to applicable law, each Subsidiary of the Company that is a Foreign Loan Party will cause 100% of the issued and outstanding Equity Interests of each of its direct Subsidiaries that is organized in the same jurisdiction as such Foreign Loan Party to be subject at all times to a first priority, perfected Lien in favor of the applicable Collateral Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided. Solely for purposes of this Section 5.13(b), howeverany Foreign Loan Party that is disregarded as separate from a US Person shall be treated as a US Loan Party, this paragraph (b) shall and not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryForeign Loan Party.
(c) Without limiting the foregoing, subject to applicable law, each Loan Party will, will and will cause each Subsidiary that is a Loan Party to, to execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each 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 trust, hypothecs and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the Administrative Agent or any 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 the Loan PartiesParties (including, for the avoidance of doubt, to reflect any change in the Guaranteed Parties hereunder). In addition, each Loan Party will execute and deliver, or cause to be executed and delivered, to the Administrative Agent and each Collateral Agent filings with any United States, Canadian, United Kingdom or Irish governmental recording or registration office reasonably requested by the Administrative Agent or any Collateral Agent, in the exercise of its Permitted Discretion, in order to perfect or protect the Liens of the applicable Collateral Agent granted under any Collateral Document in any registered or pending United States, Canadian, United Kingdom or Irish Intellectual Property.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including other than any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower Company or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Agents, the applicable Lenders and the applicable Issuing Banks upon acquisition thereof), the Borrower Company will notify the Administrative Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will promptly cause such assets to be subjected to a Lien securing the applicable Secured Obligations and will take, and cause the its Subsidiaries that are Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or any Collateral Agent to grant and perfect such Liens, including actions described in paragraph (c) of this SectionSection and as set forth below, all at the expense of the Loan Parties.
. In the event any fee owned real property or improvements thereto or any interest therein with a fair market value in excess of $5,000,000 is acquired by the Company or any Subsidiary that is a Loan Party after the Effective Date (e) Ifor is owned by an entity that executed a Joinder Agreement and becomes a Loan Party after the Effective Date), the Company shall, at any time the Administrative Agent’s request and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 within 90 days after the date by which financial statements for following such quarter are required to be delivered pursuant to this Agreement request (or such later date longer period as agreed to by the Administrative Agent may agree in its sole discretion), cause one deliver to the Administrative Agent and the applicable Collateral Agent the following (or, in the case of any Loan Party that is not a US Loan Party, such comparable documents under the laws of the relevant jurisdiction reasonably requested by the applicable Collateral Agent):
(i) a first priority Mortgage, in favor of the applicable Collateral Agent, for the benefit of the Agents, the applicable Lenders and the applicable Issuing Banks, covering such real property;
(ii) if requested by the Administrative Agent (and with a copy to the title insurance company issuing the policy referred to in clause (iii) below (the “Title Insurance Company”)), maps or more plats of an as-built survey of the sites of such Domestic Restricted Subsidiaries real property certified to become additional the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date reasonably satisfactory to the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Administrative Agent and the Title Insurance Company;
(iii) a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance in respect of such real property, in each case in form and substance reasonably satisfactory to the Administrative Agent, and evidence reasonably satisfactory to it that all premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid;
(iv) (1) a “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such real property (together with, if required, a notice about special flood hazard area status and flood disaster assistance duly executed by the Company or the applicable Loan Parties Party in the event any such real property is located in a special flood hazard area) and (notwithstanding that 2) if any portion of such Domestic Restricted Subsidiaries arereal property is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a Special Flood Hazard Area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (now or as hereafter in effect or any successor act thereto), individually(a) flood insurance with a financially sound and reputable insurer, Immaterial Subsidiariesin an amount reasonably satisfactory to the Administrative Agent and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statute thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto (any such that insurance “Flood Insurance”) and (b) evidence of such insurance in form and substance reasonably acceptable to the Administrative Agent;
(v) a copy of all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in clause (iii) above and a copy of all other material documents affecting any mortgaged properties;
(vi) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing condition ceases in form and substance reasonably satisfactory to be true.the Administrative Agent; and
(fvii) Notwithstanding any provision of the Loan Documents legal opinions relating to the contrarymatters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementAdministrative Agent .
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingslaw and the Intercreditor Agreement, the Borrower and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiaries) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of this Agreement in accordance with the end terms of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party by executing the Joinder Agreement set forth as Exhibit E hereto (the “Joinder Agreement”) within 20 Business Days 10 days of formation or acquisition as applicable (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”reasonable judgment). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) subject to the terms, conditions and provisions of the Intercreditor Agreement will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofLenders, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on including any Material Real Property located in the U.S. owned by any Loan Party in each case within 10 days for Collateral other than Material Real Property or 75 days in the case of Material Real Property (or such terms later date as may be required pursuant agreed to by the terms of the Administrative Agent in its reasonable judgment) or as otherwise set forth in any Collateral DocumentsDocument.
(b) Holdings, the The Borrower and each Subsidiary that is a other Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more other than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or and the Excluded Joint Venture) and (yii) other Domestic Subsidiaries described in this clause (B), 6566% 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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any domestic Subsidiary that is a Loan Party to be subject at all times to a first priority second priority, perfected Lien (subject to Liens permitted by Section 6.02) in favor of the Administrative Agent pursuant to the terms and conditions of the Loan Documents or other security documents as (including the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryIntercreditor Agreement).
(c) Without limiting the foregoing, but subject to the terms, conditions and provisions of the Loan Documents, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than Foreign Subsidiaries) to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11terms, conditions and provisions of the Intercreditor Agreement, if any material assets (including any owned real property Material Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party Guarantor after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Security Agreement upon acquisition thereof)) constituting Collateral, the Borrower will promptly notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 10 days for Collateral other than Material Real Property or 75 days in the case of Material Real Property (or such later date as agreed to by the Administrative Agent in its reasonable discretion or as otherwise set forth in any Collateral Document, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries 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 (c) of this Section, all at the reasonable expense of the Loan Parties.
(e) IfParties in each case in accordance with the terms, at any time conditions and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision provisions of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral AgreementDocuments.
Appears in 1 contract
Sources: Credit Agreement (Us Concrete Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each Requirements of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary butLaw, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify promptly as an Immaterial Subsidiary, to become a Loan Party possible but in any event within 20 Business Days thirty (30) days (or such later date as may be agreed to upon by the Administrative Agent in its sole discretionAgent) after any Person qualifies as one of the Company’s wholly-owned Material Domestic Restricted Subsidiaries (other than Excluded Subsidiaries), each Loan Party will cause such Person to become a Loan Party by executing a Joinder Agreement, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent, whereupon it shall guarantee repayment of all Secured Obligations. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Guarantor hereunder and thereupon shall have all of the rights, benefits, duties and obligations in such capacity under the Loan Documents and (ii) will grant Liens to the Administrative Agent, for the benefit of the Secured Parties, in order to secure repayment of all of the Secured Obligations in substantially all assets of such Loan Party (other than any Excluded Assets).
(b) Subject to applicable Requirements of Law, to secure the form set forth prompt payment and performance of all of the Foreign Secured Obligations, as Exhibit D hereto promptly as possible but in any event within thirty (30) days (or such later date as may be agreed upon by the “Administrative Agent) after any Person qualifies as one of the Foreign Loan Parties’ Material Foreign Restricted Subsidiaries, each Loan Party will cause such Person to become a Foreign Loan Party by executing a Joinder Agreement”, such Joinder Agreement to be accompanied by appropriate corporate resolutions, other corporate organizational and authorization documentation and legal opinions in form and substance reasonably satisfactory to the Administrative Agent, whereupon it shall guarantee repayment of all Foreign Secured Obligations (subject, in the case of a German Loan Party, to the German Guaranty Limitations). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and Administrative Agent, the Lenders and each the other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) substantially all assets of such Loan Party which constitutes Collateral(other than Excluded Assets), but with due regard to customary exclusions in the each relevant jurisdiction.
(c) If, at any time after the Effective Date any Subsidiary of the Company that is not a Loan Party shall become party to a guaranty of, or ▇▇▇▇▇ ▇ ▇▇▇▇ on any assets to secure, the Term Loan Obligations, any Junior Secured Indebtedness, any Subordinated Indebtedness or any other Material Indebtedness of the Company or a Domestic Loan Party, the Company shall promptly notify the Administrative Agent thereof and, within ten (10) days thereof (or such terms later date as may be required pursuant agreed upon by the Administrative Agent) cause such Subsidiary to comply with Section 5.14(a) and (b) (but without giving effect to the terms of the Collateral Documents30-day grace periods provided therein).
(bd) Holdings, the The Borrower and each Representative may at any time designate any Restricted Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that is a Loan Party will cause (i) 100% of the issued immediately before and outstanding Equity Interests of each of its Domestic Subsidiaries (orafter such designation, no Default shall have occurred and be continuing and, in the case of (A) designating any Domestic Restricted Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic an Unrestricted Subsidiary, a “DRE”the Loan Parties shall have satisfied the Payment Condition at the time of such designation, (ii) that holds more than 65% of the Capital Stock of (x) a Foreign no Borrower may be designated as an Unrestricted Subsidiary, (yiii) another DRE that holds more than 65% of the Capital Stock of a Foreign no Unrestricted Subsidiary and/or (z) shall hold any Domestic Subsidiary described in clause (B)Indebtedness of, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B)Lien on any property of, 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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the any Borrower or any Restricted Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or (other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary than to the extent a pledge permitted under Article VI hereof), (iv) the holder of such Equity Interests in favor any Indebtedness of the Agent or any Unrestricted Subsidiary shall not have any recourse to secure any debt securities of the Borrower or their respective Restricted Subsidiaries with respect to such Indebtedness, (v) no Unrestricted Subsidiary shall be a party to any transaction or arrangement with any Borrower or their respective Restricted Subsidiaries that would not be permitted by Section 6.09, (vi) any Subsidiary that would guarantees Material Indebtedness of any Loan Party shall not be entitled to such a security interest would require separate financial statements an Unrestricted Subsidiary and (vii) none of a Subsidiary to be filed with the SEC (Borrowers or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or their respective Restricted Subsidiaries shall have any successor thereto) or any other law, rule or regulation or (ii) the obligation to subscribe for additional Equity Interests of any Unrestricted SubsidiarySubsidiary or to preserve or maintain the financial condition of any Unrestricted Subsidiary (other than to the extent permitted under Article VI here).
(ce) Without limiting the foregoing, each Loan Party will, and will cause each Restricted Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(df) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property other than Excluded Assets or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000other assets not required to be Collateral) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and applicable Collateral Agreement Documents that become subject to the Lien granted by the Domestic Loan Parties in favor of the Administrative Agent in support of all of the Secured Obligations or the Lien granted by the Foreign Loan Parties in favor of the Administrative Agent in support of the Secured Obligation, Foreign Secured Obligations or German Secured Obligations, as applicable, in each case, upon acquisition thereof), the Borrower Representative will promptly (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations, the Foreign Secured Obligations and will takeor the German Secured Obligations, as applicable, and cause the Loan Parties that are Subsidiaries to take, (ii) 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 (cg) of this Section, all at the expense of the Loan Parties. Notwithstanding the foregoing, no Loan Party shall be obligated to grant any Lien over additional real property unless such Loan Party desires to include such real property in any Borrowing Base.
(eg) IfNotwithstanding the foregoing, the parties hereto acknowledge and agree that (i) in circumstances where the Administrative Agent reasonably determines that the cost or effort of obtaining or perfecting a security interest in any asset that constitutes Collateral is excessive in relation to the benefit afforded to the 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, (ii) the Administrative Agent may grant extensions of time for the 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 time and from time other Loan Document, (iii) no Loan Party shall be required to time after take any actions outside of the Second Restatement Date, Domestic Restricted Subsidiaries that are not jurisdiction of formation of any of the other Loan Parties because they are Immaterial Subsidiaries comprise to create or perfect local law security in any Collateral (but may be required to take such actions in order to include certain types of Collateral in the aggregate more than 7.5% of Total Assets as Borrowing Bases) and (iv) the Loan Parties shall not be required to take any action to create or perfect a security interest under non-U.S. law in any Term Loan Priority Collateral to secure the Secured Obligations of the end Domestic Loan Parties that is not also being taken in support of the most recently ended fiscal quarter Term Loan Obligations.
(h) Notwithstanding the foregoing, to the extent any new Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transaction, such new Subsidiary shall not be required to take the actions set forth in Section 5.14(a) or (b), as applicable, until the consummation of such Permitted Acquisition (at which time, the surviving entity of the Borrower and the Restricted Subsidiaries respective merger transaction shall be required to so comply with Section 5.14(a) or more than 7.5% of Consolidated EBITDA (b), as applicable, within ten (10) Business Days of the Borrower and the Restricted Subsidiaries for the consummation of such Permitted Acquisition, as such time period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to may be delivered pursuant to this Agreement (or such later date as agreed to extended by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Belden Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable lawUpon the formation or acquisition of any Material Domestic Subsidiary (or upon a Restricted Subsidiary that is not a Material Domestic Subsidiary becoming a Material Domestic Subsidiary), Holdings, each Obligor will cause each such Material Domestic Subsidiary within thirty (30) days (or in the Borrower and each case of any Material Domestic Subsidiary that is a Loan Party shall cause Burro Entity, within one (i1) each of Business Day) from its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary creation or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days acquisition (or such later date longer time period as agreed to by the Administrative Agent may agree in its sole discretion) and subject to and solely to the extent permitted by applicable Requirements of Law, to become Loan Guarantor (but, for the avoidance of doubt, not a Borrower) by executing a Joinder Agreement and to become an Obligor by executing an “Assumption Agreement” (as defined in substantially the form set forth as Exhibit D hereto (the “Joinder Security Agreement”). Upon execution and delivery thereof, each such Person (ix) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (iiy) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and Administrative Agent, the Lenders and each the other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party Person which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) HoldingsSubject to clause (a) above, the Borrower Kodiak Corp and each Subsidiary that is a Loan Party becomes an Obligor will cause (i) 100% of the issued and outstanding Equity Interests of owned by such Obligor in each of its Domestic Restricted Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as other than a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, FSHCO or a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock direct or indirect subsidiary of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 65% (or such greater percentage that, due to a change in applicable law after the date hereof, (1) could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary as determined for U.S. Federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary’s U.S. parent and (2) could not reasonably be expected to cause any material adverse tax consequences) 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 Foreign Subsidiary Restricted Subsidiaries or FSHCOs directly owned by the Borrower Kodiak Corp or any Subsidiary that is a Loan Party an Obligor to be subject at all times to a first priority priority, perfected Lien (subject to Permitted Encumbrances) in favor of the Agent pursuant to Administrative Agent, for the terms and conditions benefit of the Loan Documents or Administrative Agent and the other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiarySecured Parties.
(c) Without limiting the foregoing, each Loan Party Obligor will, and will cause each Subsidiary that is a Loan Party of its Restricted Subsidiaries to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan PartiesObligors, and such other documents as the Administrative Agent may reasonably request on behalf of any Lender that is a regulated financial institution or any affiliate of such a Lender (each, a “Regulated Lender Entity”), in each case, to the extent such other documents are required for compliance by such Regulated Lender Entity with applicable Law with respect to flood insurance diligence, documentation and coverage under the Flood Laws. Prior to signing by the Obligors of any mortgage or deed of trust, the Obligors and the Administrative Agent shall have provided each Regulated Lender Entity a copy of the life of loan flood zone determination relative to any real property to be subject to such mortgage or deed of trust delivered to the Administrative Agent and copies of the other documents required by any such Regulated Lender Entity as provided in the preceding sentence and shall have received confirmation from each Regulated Lender Entity that flood insurance due diligence and flood insurance compliance has been completed by such Regulated Lender Entity (such confirmation not to be unreasonably withheld, conditioned or delayed, and shall be delivered promptly upon such completion by the applicable Regulated Lender Entity). Notwithstanding the foregoing, no Obligor will be required to execute or deliver a mortgage or deed of trust covering any real property or take perfection steps with respect to any Excluded Account.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned other than vehicles or real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein or any other asset not constituting Collateral) are acquired by the Borrower or any Subsidiary that is a Loan Party Obligor after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the Loan Parties that are Subsidiaries each applicable Obligor 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 (c) of this Section, all at the expense of the Loan PartiesObligors.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% The provisions of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall Section 5.14 need not be required satisfied with respect to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject To the extent required by Section 5.14(f) below, but subject to applicable lawRequirements of Law and subject to the terms of the Intercreditor Agreement, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and date of this Agreement within thirty (ii30) any days (or such Domestic Subsidiary that was an Immaterial Subsidiary but, as of longer period the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, Administrative Agent shall approve in writing) after such formation or acquisition to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially (or such other documents performing similar functions as may be required by the form set forth Administrative Agent or Required Lenders). In connection therewith, the Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act and Canadian AML Legislation. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the AgentAdministrative Agent or the Australian Security Trustee (as applicable), for the benefit of the Agent Administrative Agent, the Australian Security Trustee and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documentsincluding any Material Real Property.
(b) HoldingsTo the extent so owned, the Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries to be subject at all times to a perfected Lien in favor of the Administrative Agent or the Australian Security Trustee (oras applicable) for the benefit of the Administrative Agent, the Australian Security Trustee and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided that if the Borrower, in good faith consultation with the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any Required Lenders, reasonably determines that such Domestic Subsidiary, a “DRE”) that holds more than 65% of security interest in the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock Equity Interests of a Foreign Subsidiary and/or (zother than a Loan Party) any Domestic Subsidiary described would result in clause (B)material adverse tax consequences, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests entitled then such pledge may be limited 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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryParty.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party and Subsidiary to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent or the Australian Security Trustee (as applicable) (or, if the Intercreditor Agreement and/or any other intercreditor agreement is in effect, its agents, designee or bailee, in each case pursuant to the Intercreditor Agreement and/or such other intercreditor agreement) such documents, agreements and instruments, and will take or cause to be taken such further actions (including the delivery of legal opinions, 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 the Loan Parties.
(d) Subject With respect to all owned Material Real Property owned by a Loan Party that is acquired after the Effective Date or that becomes Material Real Property after the Effective Date, the Loan Parties shall within sixty (60) days thereafter (or such later date as approved by the Administrative Agent), deliver each of the following, in form and substance reasonably satisfactory to the limitations set forth Administrative Agent:
(i) a Mortgage on such property;
(ii) evidence that a counterpart of the Mortgage has been recorded in the place necessary, in the Administrative Agent’s reasonable judgment, to create a valid and enforceable Lien in favor of the Administrative Agent for the benefit of itself and the Secured Parties, subject to Permitted Encumbrances;
(iii) ALTA or referred other mortgagee’s title policy;
(iv) an ALTA survey prepared and certified to the Administrative Agent by a surveyor reasonably acceptable to the Administrative Agent;
(v) an opinion of counsel in this Section 5.11the state in which such Material Real Property is located in form and substance and from counsel reasonably satisfactory to the Administrative Agent;
(vi) if any such parcel of Material Real Property is determined by the Administrative Agent to be in a flood zone, if a flood notification form signed by the Borrower and evidence that flood insurance is in place for the building and contents, all in form and substance satisfactory to the Administrative Agent;
(vii) such other information, documentation, and certifications as may be reasonably required by Administrative Agent or Required Lenders.
(e) If any material assets (including any owned real property Material Real Property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower will (i) notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, to the Borrower will extent not constituting Excluded Assets (as defined in the Security Agreement), cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(ef) IfThe Borrower will ensure that the Guarantors will:
(i) at all times, own, in aggregate, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5least 85% of the Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; and
(ii) beginning with the Restricted Subsidiaries or more than 7.5first full fiscal quarter ending after the Effective Date, generate at least 85% of Consolidated the EBITDA of the Borrower and its Subsidiaries in respect of each 6-month period ending on last day of each fiscal quarter. A failure to comply with Section 5.14(f) at any time will not constitute an Event of Default if any Subsidiary that is not a Guarantor becomes a Guarantor by satisfying the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 requirements set forth Section 5.14 within thirty (30) days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by longer period the Administrative Agent shall approve in its sole discretion)writing) of such formation or acquisition and, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contraryas a result, the Loan Parties shall not be required to grant a security interest in any personal property requirements of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral AgreementSection 5.14(f) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreementare satisfied.
Appears in 1 contract
Sources: Subordinated Credit Agreement (F45 Training Holdings Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdingseach Loan Party shall, unless the Borrower and Required Lenders otherwise consent, (i) cause each operating Subsidiary that is of the Company (excluding any Foreign Subsidiary) to become or remain a Loan Party shall and a Guarantor and (ii) cause each operating Subsidiary of the Company (i) each of its Domestic Subsidiaries (other than excluding any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesForeign Subsidiary) formed or acquired after the Second Restatement Closing Date and in accordance with the terms of this Agreement to (ii1) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed party to by the Administrative Agent in its sole discretion) this Agreement by executing a Joinder Agreement in substantially the form set forth as Exhibit D E hereto (the “Joinder Agreement”), and (2) guarantee payment and performance of the Guaranteed Obligations pursuant to the Guaranty and enter into a Security Agreement granting to the Agent, for the benefit of the Domestic Lenders, a first priority security interest in all of its personal and real Property. Upon execution and delivery thereofof such Loan Documents and other instruments, certificates, and agreements, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and Documents.
(iib) will simultaneously therewith or as soon as practicable thereafter Upon the request of the Agent, (i) each Domestic Loan Party shall grant Liens to the AgentAgent in respect of the Obligations and each Singapore Loan party shall grant Liens to the Singapore Correspondent Lender in respect of the Singapore Obligations, in each case for the benefit of the Applicable Agent and Lenders, pursuant to such documents as the Lenders Agent may reasonably deem necessary and each other Secured Party at deliver such time party property, documents, and instruments as the Agent may request to or benefiting from perfect the Guarantee and Collateral Agreement to Liens of the extent required by the terms thereof, Agent in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) Property of such Loan Party which constitutes Collateral, on such terms as may be required pursuant including any parcel of real Property located in the U.S. owned by any Loan Party, and (ii) in connection with the foregoing requirements, or either of them, deliver to the terms Agent all items of the Collateral Documentstype required by Section 4.1 (as applicable).
(bc) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests Capital Stock of each of its Domestic Subsidiaries and (orii) 65% (or such greater percentage that, due to a change in an applicable law after the case of date hereof, (A) any Domestic could not reasonably be expected to cause the undistributed earnings of such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or ’s U.S. parent and (B) could not reasonably be expected to cause any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (xmaterial adverse tax consequences) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (B), 65% of the issued and outstanding Equity Interests Capital Stock 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)) of such Domestic Subsidiary) and (ii) 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 Capital Stock not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is also a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(cd) Without limiting the foregoing, each Loan Party willshall, and will shall cause each Subsidiary that of the Company’s Subsidiaries which is required to become a Loan Party pursuant to the terms of this Agreement to, execute and deliver, or cause to be executed and delivered, to the Agent such documents, agreements documents and instrumentsagreements, and will shall 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) IfUpon the Agent’s reasonable request, at any time and from time each Loan Party shall use its commercially reasonable efforts to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents deliver to the contraryAgent all subordination agreements, intercreditor agreements and other similar documents in form and substance reasonably satisfactory to the Agent related to the Permitted Precious Metals Agreements in which a Loan Parties shall not be required to grant Party has granted a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant addition to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement“precious metals.”
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a other Loan Party shall cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization EntitiesExcluded Subsidiary) formed or acquired after the Second Restatement Date date of this Agreement to become a Loan Party on or prior to the date that is the later of (i) 30 days following the date of such formation or acquisition and (ii) any the earlier of the date of the required delivery of the next Compliance Certificate following such Domestic Subsidiary that was an Immaterial Subsidiary but, as of creation or acquisition and the date which is 45 days after the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days Fiscal Quarter (or such later date as agreed may be acceptable to by the Administrative Agent in its sole discretion) ), by executing a Joinder Agreement in substantially the form set forth attached as Exhibit D J hereto (the “Joinder Agreement”)) and a Security Agreement Joinder Agreement. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith deliver a completed Perfection Certificate and simultaneously therewith or as soon as practicable thereafter (and in any event within 45 days thereafter (as may be extended at the discretion of the Administration Agent)) take such actions as may be required in accordance with the terms hereof or of the applicable Collateral Documents to grant Liens to the Administrative Agent, for the benefit of the Agent itself and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement Party, in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests Capital Stock set forth in paragraph (b) of this Section 5.11 5.12, the limitations with respect to real property set forth in paragraph (d) of this Section 5.12, and any other limitations set forth in the Guarantee Pledge and Collateral Security Agreement) of such Loan Party which constitutes CollateralCollateral (including any Material Real Estate Assets), on such terms as may be required pursuant to the terms of the Collateral Documents, and with respect to Material Real Estate Assets, take such actions described in paragraph (d) of this Section.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the all Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party it to be subject at all times to a first priority First Priority perfected Lien in favor of the Administrative Agent pursuant to the terms and conditions of the Collateral Documents (other than Capital Stock in Osmotica BVI, so long as Osmotica BVI is not a Loan Documents Party); provided that, in the case of voting Capital Stock of After-Acquired CFCs and Disregarded Domestic Subsidiaries, such pledge shall be limited to 65.0% of the voting Capital Stock of any first-tier After-Acquired CFC or other security documents as the Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Disregarded Domestic Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted SubsidiaryLoan Party.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary of its Subsidiaries that is a Loan Party to, promptly execute and deliver, or cause to be promptly executed and delivered, to the 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 4.02Article 4, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)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 (to the extent required herein or therein), all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.115.12, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are Material Real Estate Asset is acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets any asset constituting Collateral under the Guarantee Pledge and Collateral Security Agreement that become becomes subject to the Lien in favor of the Administrative Agent upon acquisition thereof), the Borrower Representative will notify the Administrative Agent and the Lenders thereof, and, if requested by the Administrative Agent or the Required Lenders, within 90 days of such request (or such longer period as may be acceptable to the Borrower Administrative Agent) such Loan Party will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the each Subsidiary that is a Loan Parties that are Subsidiaries Party 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 (c) of this SectionSection and delivery of flood hazard determination forms, title insurance policies (including any endorsements thereto), surveys and local counsel opinions, all at the expense of the Loan Parties.
(e) IfAfter any Domestic Subsidiary ceases to constitute an Excluded Subsidiary in accordance with the definition thereof, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), Borrowers shall cause one or more such Domestic Restricted Subsidiaries Subsidiary to become additional Loan Parties take all actions required by this Section 5.12 (notwithstanding that within the time periods specified herein) as if such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be trueSubsidiary were then formed or acquired.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to any applicable lawRequirement of Law, Holdingseach Loan Party will cause each Domestic Subsidiary in existence on the Effective Date, the Borrower other than an Excluded Subsidiary, and each Domestic Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was Effective Date, other than an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Acquired Majority Owned Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the “Joinder Agreement”)applicable "know your customer" rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, including any parcel of real property located in the U.S. owned by any Loan Party, other than real property subject to financing on such terms as may be required pursuant to the terms of the Collateral DocumentsEffective Date that is permitted under Section 6.01.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic other than an Excluded Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic an Acquired Majority Owned Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower such Loan Party or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party (other than an Excluded Subsidiary or an Acquired Majority Owned Subsidiary) to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law or which the 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 the Loan Parties.any
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirement of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially Agreement. In connection therewith, the form set forth Administrative Agent shall have received all documentation and other information regarding such newly formed or acquired Subsidiaries as Exhibit D hereto (may be required to comply with the applicable “Joinder Agreement”)know your customer” rules and regulations, including the USA Patriot Act. Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries and (orii) 65% (or such greater percentage that, in (1) could not reasonably be expected to cause the case undistributed earnings of (A) any Domestic such Foreign Subsidiary treated as a disregarded entity determined for U.S. federal income tax purposes (any to be treated as a deemed dividend to such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, ’s U.S. parent and (y2) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (zcould not reasonably be expected to cause any material adverse tax consequences) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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% each of the issued and outstanding Equity Interests not entitled to vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such Domestic Subsidiary) and (ii) 65% of the issued and outstanding Equity Interests its Foreign Subsidiaries 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 Foreign Subsidiary directly owned by the such Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereofthereof and any Excluded Assets), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (iPower Inc.)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower Borrowers and each Subsidiary that is a Loan Party may at its election cause any of its Domestic Subsidiaries, and shall (within 30 days after the formation or acquisition, or determination that a Subsidiary is a Subsidiary, or designation of a Subsidiary as a Subsidiary Borrower, or such longer period as may be agreed to by the Administrative Agent) cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entities) formed or acquired after the Second Restatement Date and (ii) Effective Date, or any such Domestic Subsidiary that was an Immaterial designated as a Subsidiary butBorrower, as in accordance with the terms of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiarythis Agreement, to (A) become a Loan Party within 20 Business Days by executing, as applicable, a Borrower Joinder Agreement or a Guarantor Joinder Agreement and (B) execute and deliver such amendments, supplements or such later date documents of accession to any Collateral Documents as agreed to by the Administrative Agent deems necessary for such Subsidiary to grant to the Administrative Agent (for the benefit of the Secured Parties) a perfected first priority security interest in its sole discretion) by executing a Joinder Agreement the Collateral described in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”)such Collateral Document with respect to such Subsidiary, subject only to Liens permitted under Section 6.02. Upon execution and delivery thereofof such documents and agreements, each such Person (i) shall automatically become a Loan Party hereunder Guarantor of the Secured Obligations under the Security Agreement and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity and as a Loan Party under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may . The requirements of this clause (a) shall not be required pursuant to the terms of the Collateral Documents.
(b) be satisfied with respect to Tyson Delaware Holdings, the Borrower LLC, Provemex Holdings, LLC, and each any SPE Subsidiary or to any other Subsidiary (1) that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (subject to any legal or, in the case of any special purpose or limited purpose entity, any contractual restriction preventing or prohibiting it from satisfying such requirement, (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”2) that holds more than 65% is a Subsidiary of the Capital Stock of (x) a Foreign Subsidiary, (y3) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Variable Interest Entity or (4) with respect to which the Administrative Agent determines that the cost of satisfaction of such requirement with respect thereto exceeds the value afforded thereby (and any such Subsidiary that does not so satisfy the terms of this Section 5.14(a) shall not become a Loan Party to be subject at all times to and/or a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, this paragraph Party hereunder).
(b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary Subject to the extent a pledge of such Equity Interests limitations set forth in favor of the Agent or to secure any debt securities of Security Agreement, the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party Company will, and will cause each Subsidiary that is a Loan Party to, execute any and deliverall further documents, or cause to be executed and delivered, to the Agent such documentsfinancing statements, agreements and instruments, and will take or cause to be taken all 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 4.02, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)), which that may be required by law under any applicable law, or which that the Administrative Agent mayor the Required Lenders may reasonably request, from time to time, reasonably request to carry out the terms and conditions of this Agreement and the other Loan Documents 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Date (other than assets constituting Collateral under the Guarantee and Collateral Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.5% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Tyson Foods Inc)
Additional Collateral; Further Assurances. (a) Subject to applicable law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall cause (i) each of its Domestic Subsidiaries (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), ) or Unrestricted Subsidiary or Securitization EntitiesSubsidiary) formed or acquired after the Second Restatement Closing Date in accordance with the terms of this Agreement that is required to become a Subsidiary Guarantor pursuant to Section 6.08 and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) promptly thereafter as reasonably practicable by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become a Loan Party Guarantor hereunder and thereupon shall have all of the rights, benefits, duties, and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Agent, for the benefit of the Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Intercreditor Agreement or the Security Agreement (including, if applicable, the holders of the 2028 Debentures), in each case to the extent required by the terms thereof, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11, the limitations with respect to real property set forth in paragraph (f) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Security Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral DocumentsDocuments and in such priority as may be required pursuant to the terms of the Intercreditor Agreement.
(b) Holdings, the The Borrower and each Subsidiary that is a Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (orSubsidiaries, in the case of (A) other than any Domestic Subsidiary treated taxed as a disregarded entity partnership for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in whose Equity Interests are pledged pursuant to clause (B)ii) below, or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the Borrower or any Subsidiary that is a Loan Party to be subject at all times to a first priority perfected Lien in favor of the Agent pursuant to the terms and conditions of the Loan Documents or other security documents as the Agent shall reasonably request; provided, however, however this paragraph (b) shall not require the Borrower or any Subsidiary to grant a security interest in (i) any Equity Interests of a Subsidiary to the extent a pledge of such Equity Interests in favor of the Agent or to secure any debt securities of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other law, rule or regulation or (ii) the Equity Interests of any Unrestricted Subsidiary.
(c) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the 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 4.02Article IV of the Original Credit Agreement, as applicable (including legal opinions, Title Insurance Policies, certificates the delivery of the items contemplated by paragraph (m) thereof to the extent the Borrower has been unable to deliver such items by the Closing Date after having used its commercially reasonable efforts to obtain and corporate and organizational documentsdeliver such items by the Closing Date)), which may be required by law or which the 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 the Loan Parties.
(d) Subject to the limitations set forth or referred to in this Section 5.11, if any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000or any interest therein) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Closing Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of the Agent upon acquisition thereof), the Borrower will notify the Agent and the Lenders thereof, and, if requested by the Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will take, and cause the Loan Parties that are Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Agent to grant and perfect such Liens, including actions described in paragraph (c) of this Section, all at the expense of the Loan Parties.
(e) If, at any time and from time to time after the Second Restatement Closing Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.55% of Total Assets as of the end of the most recently ended fiscal quarter of the Borrower and the Restricted Subsidiaries or more than 7.55% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters as of the end of the most recently ended fiscal quarter of the Borrower, then the Borrower shall, not later than 45 days after the date by which financial statements for such quarter are required to be delivered pursuant to this Agreement (or such later date as agreed to by the Administrative Agent in its sole discretion)Agreement, cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases to be true.
(f) Notwithstanding any provision anything to the contrary in this Section 5.11, real property required to be mortgaged under this Section 5.11 shall be limited to real property located in the U.S. that are full-line Neiman Marcus retail stores owned in fee by a Loan Party or leased by a Loan Party pursuant to a financeable lease or other real property owned in fee by a Loan Party having a fair market value at the time of the Loan Documents acquisition thereof of $5,000,000 or more (provided that the cost of perfecting such Lien is not unreasonable in relation to the contrarybenefits to the Lenders of the security afforded thereby in the Agent’s reasonable judgment after consultation with the Borrower; provided further that the Borrower shall use commercially reasonable efforts to ensure that all leases entered into after the Closing Date by the Borrower and the other Loan Parties will be financeable leases).
(g) Notwithstanding anything to the contrary contained herein, the Loan Parties shall not be required to grant a security interest in include as Collateral any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral Excluded Assets (each as defined in the Guarantee and Collateral Security Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement).
Appears in 1 contract
Additional Collateral; Further Assurances. (a) Subject to applicable lawRequirements of Law, Holdings, the Borrower and each Subsidiary that is a Loan Party shall will cause (i) each of its Domestic Subsidiaries Subsidiary (other than any Immaterial Subsidiary (except as otherwise provided in paragraph (e) of this Section 5.11), Unrestricted Subsidiary or Securitization Entitiesan Excluded Subsidiary) formed or acquired after the Second Restatement Date and (ii) any such Domestic Subsidiary that was an Immaterial Subsidiary but, as date of the end of the most recently ended fiscal quarter of the Borrower has ceased to qualify as an Immaterial Subsidiary, this Agreement to become a Loan Party within 20 Business Days (or such later date as agreed to by the Administrative Agent in its sole discretion) by executing a Joinder Agreement in substantially the form set forth as Exhibit D hereto (the “Joinder Agreement”). Upon execution and delivery thereof, each such Person (i) shall automatically become either a Loan Party Guarantor or, if its Accounts are to be included in the Borrowing Base, a Borrower hereunder and thereupon shall have all of the rights, benefits, duties, duties and obligations in such capacity under the Loan Documents and (ii) will simultaneously therewith or as soon as practicable thereafter grant Liens to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders and each other Secured Party at such time party to or benefiting from the Guarantee and Collateral Agreement to the extent required by the terms thereofParties, in any property (subject to the limitations with respect to Equity Interests set forth in paragraph (b) of this Section 5.11 and any other limitations set forth in the Guarantee and Collateral Agreement) of such Loan Party which constitutes Collateral, on such terms as may be required pursuant to the terms of the Collateral Documents.
(b) Holdings, the Borrower and each Subsidiary that is a Each Loan Party will cause (i) 100% of the issued and outstanding Equity Interests of each of its Domestic Subsidiaries (or, in the case of (A) any Domestic Subsidiary treated as a disregarded entity for U.S. federal income tax purposes (any such Domestic Subsidiary, a “DRE”) that holds more than 65% of the Capital Stock of (x) a Foreign Subsidiary, (y) another DRE that holds more than 65% of the Capital Stock of a Foreign Subsidiary and/or (z) any Domestic Subsidiary described in clause (B), or (B) any Domestic Subsidiary all or substantially all the assets of which consist of Equity Interests of one or more (x) Foreign Subsidiaries and/or (y) other Domestic Subsidiaries described in this clause (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)) of such Domestic Subsidiary) and (ii) 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 Foreign Subsidiary directly owned by the such Borrower or any Domestic Subsidiary that is a Loan Party to be subject at all times to a first priority priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, pursuant to the terms and conditions of the Loan Documents or other security documents as the Administrative Agent shall reasonably request; provided, however, this paragraph .
(bc) shall not require Effective as of the Borrower or any Subsidiary to grant a security interest in date that Intermediate Holdco becomes the owner of 100% of the issued and outstanding Equity Interests of the Company (i) any Intermediate Holdco shall execute a non-recourse pledge agreement in form and substance substantially similar to the Parent Pledge Agreement, or in another form reasonably satisfactory to the Administrative Agent (the “Intermediate Holdco Pledge Agreement”), pursuant to which, among other things, 100% of the issued and outstanding Equity Interests of the Company shall be subject to a Subsidiary to the extent a pledge of such Equity Interests first priority, perfected Lien in favor of the Agent or to secure any debt securities Administrative Agent, for the benefit of the Borrower or any Subsidiary that would be entitled to such a security interest would require separate financial statements of a Subsidiary to be filed with Administrative Agent and the SEC (or any other government agency) under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (or any successor thereto) or any other lawSecured Parties, rule or regulation or (ii) the Parent shall execute an amendment of the Parent Pledge Agreement in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which, among other things, 100% of the issued and outstanding Equity Interests of any Unrestricted SubsidiaryIntermediate Holdco shall be subject to a first priority, perfected Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent and the other Secured Parties, and (iii) the Loan Parties shall deliver a legal opinion in form and substance reasonably satisfactory to the Administrative Agent in connection therewith. Upon execution and delivery of the Intermediate Holdco Pledge Agreement, Intermediate Holdco shall automatically become a Guarantor hereunder (only to the extent of its non-recourse obligations under the Intermediate Holdco Pledge Agreement).
(cd) Without limiting the foregoing, each Loan Party will, and will cause each Subsidiary that is a Loan Party to, execute and deliver, or cause to be executed and delivered, to the Administrative Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the execution, delivery, filing and recording of recording, and maintenance of, as applicable, financing NAI-1500544456v14 85 statements, fixture filingsDeposit Account Control Agreements, mortgagesGovernment Receivables Account Agreements, deeds of trust and other documents and such other actions or deliveries of the type required by Section 4.024.01, as applicable (including legal opinions, Title Insurance Policies, certificates and corporate and organizational documents)applicable), which may be required by law any Requirement of 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 in form and substance reasonably satisfactory to the Administrative Agent and all at the expense of the Loan Parties.
(de) Subject to the limitations set forth or referred to in this Section 5.11, if If any material assets (including any owned real property or improvements thereto but excluding leasehold interests) (but only those having a fair market value of at least $5,000,000) are acquired by the Borrower or any Subsidiary that is a Loan Party after the Second Restatement Effective Date (other than assets constituting Collateral under the Guarantee and Collateral Security Agreement that become subject to the Lien in favor of under the Agent Security Agreement upon acquisition thereof), the Borrower Representative will (i) notify the Administrative Agent and the Lenders thereof, thereof and, if requested by the Administrative Agent or the Required Lenders, the Borrower will cause such assets to be subjected to a Lien securing the Secured Obligations and will (ii) take, and cause the each applicable Loan Parties that are Subsidiaries Party 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 (cd) of this Section, all at the expense of the Loan Parties.
(ef) If, at any time and from time With respect to time after the Second Restatement Date, Domestic Restricted Subsidiaries that are not Loan Parties because they are Immaterial Subsidiaries comprise in the aggregate more than 7.5% of Total Assets Parties, if any (each a “Specified Person”), if, as of the end of the most recently ended any fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b), it is determined that (i) the consolidated total assets of all such Specified Persons on the last day of such fiscal quarter exceeds 2.5% of the Borrower consolidated total assets of the Company and the Restricted its Subsidiaries or more than 7.5% (ii) the consolidated revenues of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the period of four consecutive fiscal quarters all such Specified Persons as of the end last day of such fiscal quarter for the four fiscal quarter period then ending exceeds 2.5% of the most recently ended consolidated total revenues of the Company and its Subsidiaries for such four fiscal quarter of the Borrowerperiod, then the Borrower Borrowers shall, not later than 45 days after the date by which financial statements for and shall cause their Subsidiaries to, cause such quarter are required number of such Specified Persons to be delivered become Loan Parties pursuant to this Agreement Section 5.12 as is necessary to cause the matters described in clauses (or such later date as agreed i) and (ii) above to by the Administrative Agent in its sole discretion), cause one or more such Domestic Restricted Subsidiaries to become additional Loan Parties (notwithstanding that such Domestic Restricted Subsidiaries are, individually, Immaterial Subsidiaries) such that the foregoing condition ceases cease to be truetrue after giving pro forma effect to any such Specified Person’s becoming a Loan Party.
(f) Notwithstanding any provision of the Loan Documents to the contrary, the Loan Parties shall not be required to grant a security interest in any personal property of a type that would not constitute Pledged Collateral or Article 9 Collateral (each as defined in the Guarantee and Collateral Agreement) pursuant to Section 3.01 or Section 4.01 of the Guarantee and Collateral Agreement.
Appears in 1 contract
Sources: Credit Agreement (Opko Health, Inc.)