Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary. (b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 6 contracts
Sources: Credit Agreement (L 3 Communications Corp), Credit Agreement (L 3 Communications Corp), Credit Agreement (L 3 Communications Corp)
Additional Collateral. (a) With respect to any Capital Stock new Subsidiary (other than any type of any newly Subsidiary referred to in the following parenthetical so long as it qualifies as such or is subject to the restrictions referred to therein) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Non-Recourse Subsidiary, Shell Subsidiary, Excluded Acquired Subsidiary or Regulated Subsidiary ceases to qualify as such, it being understood that such Subsidiaries will not be subject required to the Lien created by any of the Pledge Agreements but which is not so subjectbecome Subsidiary Guarantors until such time), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, or the Borrower, as the case may be, a Lien on perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such Capital Stocknew Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, limited in the case of the Equity Interests of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary, and (ii) take all actions necessary or advisable any Collateral with respect to cause such Lien to be duly perfected new Subsidiary as described in accordance with all applicable Requirements of Lawthe Guarantee and Collateral Agreement, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iiib) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described certificates, if any, representing such Equity Interests (constituting securities within the meaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes or other instruments evidencing Intercompany Obligations and all other rights and interests constituting Collateral, together with, as applicable, undated powers, instruments of transfer and endorsements, in clauses blank, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) except in the case of a Foreign Subsidiary, cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 5 contracts
Sources: Credit Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (including the Stock of newly created or acquired Subsidiaries) that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) of this Section and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the BorrowerSubsidiary, promptly (and in any event within 30 days after such Person becomes a Subsidiary): promptly: (i) cause execute and deliver to the Administrative Agent, for the benefit of the Lenders, such new Subsidiary to become a party amendments to the Subsidiary Pledge and Security Agreement and the Subsidiary Guarantee and (ii) if requested by as the Administrative Agent shall deem necessary or the Required Lenders, deliver advisable to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory grant to the Administrative Agent. Notwithstanding , for the foregoing, no Immaterial Subsidiary or Foreign Subsidiary benefit of the Borrower shall be required to execute Lenders, a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of Lien on the Capital Stock of or equity interests in any Foreign such Subsidiary of which is owned by the Borrower or any of its Subsidiaries if more than 65% Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the assets of Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary are securities of foreign companies (such determination A) to be made on the basis of fair market value), shall be required to be pledged hereunder.become
Appears in 3 contracts
Sources: Credit Agreement (L 3 Communications Holdings Inc), Credit Agreement (Southern California Microwave Inc), Credit Agreement (L 3 Communications Holdings Inc)
Additional Collateral. Each of CSSW Parent and the Borrower shall, and shall cause each of its Subsidiaries to, (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem or the Collateral Agent deems necessary or advisable to grant to the Administrative Collateral Agent, for the benefit of the Lenders, a Lien on such Capital Stockperfected first priority security interest in the Equity Interests of the Steel Winds Companies and the Stetson Intermediate Holding Company, (ii) if certificated, deliver to the Collateral Agent the certificates representing such Equity Interests, together with undated stock powers, in blank, executed and delivered by a duly Authorized Officer of the Borrower and the Steel Winds Holding Company (iii) cause the Steel Winds Companies (A) to become a party to the Guarantee and Security Agreement, (B) to take all such actions necessary or advisable to cause such Lien grant to be duly the Collateral Agent for the benefit of the Lenders a perfected first priority security interest in accordance the Collateral described in the Guarantee and Security Agreement with all applicable Requirements of Lawrespect to the Steel Winds Companies, including delivering all the filing of Uniform Commercial Code financing statements in such original certificates evidencing such Capital Stock jurisdictions as may be required by the Guarantee and Security Agreement or by law or as may be requested by the Collateral Agent and (C) to deliver to the Administrative Collateral Agent together a certificate of an Authorized Officer of each Steel Winds Company, substantially in the form of the certificate provided pursuant to Section 3.2(a)(iii), with undated stock powers executed in blank thereforappropriate insertions and attachments, and (iiiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingabove, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding Agent and (v) deliver to the foregoing, the Borrower shall not be Collateral Agent each deposit account control agreement required to grant be delivered pursuant to the Administrative Agent a Lien upon Guarantee and Collateral Agreement, in form and substance reasonably acceptable to the Capital Stock Collateral Agent; provided that the parties hereto acknowledge and agree that if any LC Indebtedness or LC Conversion Indebtedness of any Immaterial Subsidiary.
(b) With the Steel Winds Project Company with respect to any Person that, subsequent to the Original Steel Winds Project is in existence as of the Subsequent Closing Date, becomes a direct or indirect Subsidiary of then the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary Steel Winds Companies shall be required to become a party to the Subsidiary Pledge Guarantee and Security Agreement and satisfy the Subsidiary Guarantee other requirements of this Section 9.22, upon the termination, expiration and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets discharge of such Subsidiary are securities of foreign companies (such determination to be made on LC Indebtedness or LC Conversion Indebtedness, as the basis of fair market value), shall be required to be pledged hereundercase may be.
Appears in 3 contracts
Sources: Credit Agreement (First Wind Holdings Inc.), Credit Agreement (First Wind Holdings Inc.), Credit Agreement (First Wind Holdings Inc.)
Additional Collateral. (a) With respect to any Capital Stock of new Subsidiary (other than any newly Specified Excluded Subsidiary so long as it qualifies) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Specified Excluded Subsidiary ceases to qualify as such, it being understood that such Subsidiaries will not be subject required to the Lien created by any of the Pledge Agreements but which is not so subjectbecome Subsidiary Guarantors until such time), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, or the Borrower, as the case may be, a Lien perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act for separate financial statements of such Capital StockSubsidiary to be included in filings by the Borrower with the SEC, and (ii) take all actions necessary or advisable any Collateral with respect to cause such Lien to be duly perfected new Subsidiary as described in accordance with all applicable Requirements of Lawthe Guarantee and Collateral Agreement, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iiib) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described certificates, if any, representing such Equity Interests (constituting securities within the meaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes or other instruments evidencing Intercompany Obligations and all other rights and interests constituting Collateral, together with, as applicable, undated powers, instruments of transfer and endorsements, in clauses blank, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 3 contracts
Sources: Restatement Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC)
Additional Collateral. (a) With respect The Trustor acknowledges and agrees that the Obligations are secured by the Trust Property and various other collateral including, without limitation, at the time of execution of this Deed of Trust certain personal property of the Trustor described in the Credit Documents. The Trustor specifically acknowledges and agrees that the Trust Property, in and of itself, if foreclosed or realized upon would not be sufficient to satisfy the outstanding amount of the Obligations. Accordingly, the Trustor acknowledges that it is in the Trustor's contemplation that the other collateral pledged to secure the Obligations may be pursued by the Beneficiary in separate proceedings in the various States, counties and other countries where such collateral may be located and additionally that the Trustor liable for payment of the Obligations will remain liable for any deficiency judgments in addition to any Capital Stock amounts the Beneficiary may realize on sales of any newly created or acquired Subsidiary other property or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents collateral given as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, security for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforObligations. Specifically, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding without limitation of the foregoing, it is agreed that it is the Borrower intent of the parties hereto that in the event of a foreclosure of this Deed of Trust, the Indebtedness evidencing the Obligations shall not be required to grant to deemed merged into any judgment of foreclosure, but rather shall remain outstanding. It is the Administrative Agent further intent and understanding of the parties that the Beneficiary, following a Lien upon Noticed Event of Default, may pursue all of its collateral with the Capital Stock Obligations remaining outstanding and in full force and effect notwithstanding any judgment of foreclosure or any Immaterial Subsidiaryother judgment which the Beneficiary may obtain.
(b) With The Trustor acknowledges and agrees that the Trust Property and the property which may from time to time be encumbered by the other Credit Documents may be located in more than one State or country and therefore the Trustor waives and relinquishes any and all rights it may have, whether at law or equity, to require the Beneficiary to proceed to enforce or exercise any rights, powers and remedies it may have under the Credit Documents in any particular manner, in any particular order, or in any particular State or other jurisdiction. Furthermore, the Trustor acknowledges and agrees that the Beneficiary shall be allowed to enforce payment and performance of the Obligations and to exercise all rights and powers provided under this Deed of Trust, or the other Credit Documents or under any provision of law, by one or more proceedings, whether contemporaneous, consecutive or both in any one or more States in which the security is located. Neither the acceptance of this Deed of Trust, or any Credit Document nor its enforcement in one State, whether by court action, power of sale, or otherwise, shall prejudice or in any way limit or preclude enforcement of the Credit Documents through one or more additional proceedings, in that State or in any other State or country.
(c) The Trustor further agrees that any particular remedy or proceeding, including, without limitation, foreclosure through court action (in a state or federal court) or power of sale, may be brought and prosecuted in the local or federal courts of any one or more States as to all or any part of the Trust Property or the property encumbered by the Credit Documents, wherever located, without regard to the fact that any one or more prior or contemporaneous proceedings have been situated elsewhere with respect to the same or any Person that, subsequent other part of the Trust Property and the property encumbered by the Credit Documents.
(d) The Beneficiary may resort to any other security held by the Beneficiary for the payment of the Obligations in such order and manner as the Beneficiary may elect.
(e) Notwithstanding anything contained herein to the Original Closing Datecontrary, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party Beneficiary shall be under no duty to the Subsidiary Pledge Agreement and Trustor or others, including, without limitation, the Subsidiary Guarantee and (ii) if requested holder of any junior, senior or subordinate mortgage on the Trust Property or any part thereof or on any other security held by the Administrative Agent Beneficiary, to exercise or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower exhaust all or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination rights, powers and remedies available to be made on the basis of fair market value), shall be required to be pledged hereunderBeneficiary.
Appears in 3 contracts
Sources: Deed of Trust (Rj Reynolds Tobacco Holdings Inc), Deed of Trust (Rj Reynolds Tobacco Holdings Inc), Deed of Trust (Rj Reynolds Tobacco Holdings Inc)
Additional Collateral. (a) With respect to In the event (1) any Capital Stock of Credit Party forms or acquires any Subsidiary which is not an Excluded Subsidiary after the Closing Date, or (2) any Excluded Subsidiary shall no longer be deemed an Excluded Subsidiary, such Credit Party or the Credit Party which controls such former Excluded Subsidiary shall promptly upon (but no later than thirty (30) days after) such formation, acquisition or change in status cause (i) such newly created formed or acquired Subsidiary or former Excluded Subsidiary (each is a “New Subsidiary”) to execute and deliver to the Holders such documents as the Holders may then reasonably require (including, without limitation, a Guaranty and a joinder agreement causing such New Subsidiary to become party to the Security Agreement as a “Grantor” thereunder), (ii) provide updates to existing schedules and exhibits or new schedules or other disclosures as appropriate to modify representations, warranties, covenants, conditions and other provisions applicable to such New Subsidiary), (iii) a certificate attaching (x) the Organization Documents of such New Subsidiary, (y) resolutions of the board of directors (or similar governing body) of such New Subsidiary approving and authorizing the execution, delivery and performance of the documents described in this Section 7.11 and the other Operative Documents and the transactions contemplated thereby, and (z) signature and incumbency schedule of such New Subsidiary, all certified as of the date of delivery of such certificate by a Responsible Officer of such New Subsidiary as being true and complete and in full force and effect without modification and (iv) such other instruments, documents, and certificates reasonably required by the Holders in connection therewith.
(b) If any newly issued Capital Stock of asset (other than real property, which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the Borrowers) in an amount greater than $1,000,000 is acquired by any existing Credit Party or any Subsidiary acquired after the Original Closing Date or owned by an entity at the Borrower or any of its Subsidiaries time it becomes a Credit Party (in each case other than (x) assets constituting Collateral under the Security Agreement that is intended to be become subject to the Lien created by any of the Pledge Agreements but Security Agreement upon acquisition thereof, (y) assets that are not required to become subject to Liens in favor of the Holders pursuant to any Operative Document, or (z) assets of an Excluded Subsidiary), the applicable Credit Party will (i) as promptly as practicable notify the Holders thereof and (ii) take or cause the Credit Parties to take such actions as shall be reasonably requested by the Holders to grant and perfect such Liens, all at the expense of the Credit Parties.
(c) The Company shall promptly notify the Holders of the acquisition of, or completion of improvements on, and grant and cause each of the Credit Parties to grant to the Holders security interests and Mortgages in such Material Real Property of the Company or any such Credit Parties as are not covered by the Mortgages previously delivered and recorded pursuant to documentation substantially in the form of the Mortgages or in such other form as is reasonably satisfactory to the Holders (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens at the time of perfection thereof, record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Holders required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all Taxes, fees and other charges payable in connection therewith. Unless otherwise waived by the Holders, with respect to each such Additional Mortgage, the Company shall deliver to the Holders contemporaneously therewith a title insurance policy in an amount and with such endorsements as shall be required by Holders and in form and substance reasonably acceptable to Holders, flood determination and evidence of flood insurance, if required by law, legal opinion (in form and substance customary for the particular transaction and permitting reasonable assumptions and qualifications which is not so subjectare typically required in connection with opinions rendered in the cannabis industry), FIRREA appraisal (if required by law), a phase I environmental assessment, evidence of zoning compliance and no non-compliance with any other applicable laws, rules and regulations, an ALTA survey in form and substance acceptable to Holders, a phase I environmental assessment disclosing no recognized environmental conditions and otherwise in form and substance acceptable to Holders, and otherwise comply with the requirements of the Operative Documents applicable to Mortgages and Mortgaged Property. Any survey, environmental assessment, title insurance commitment or policy and evidence of zoning/compliance with applicable laws, ordinances, rules and regulations shall be at the sole cost and expense of Company.
(d) The Company shall furnish to the Holders promptly (and in any event within 30 thirty (30) days after the acquisition thereof): such change) written notice of any change (i) execute in any Credit Party’s corporate or organization name, (ii) in any Credit Party’s identity or organizational structure, (iii) in any Credit Party’s organizational identification number, or (iv) in any Credit Party’s jurisdiction of organization; provided that the Credit Parties shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Holders to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral with the same priority as prior to such change (it being understood that, subject to the foregoing, any Credit Party may change the name under which it conducts its business or its corporate name, trade name, trademarks, brand name or other public identifiers).
(e) Not later than thirty (30) days after any new deposit account or securities account is opened by any Credit Party (excluding any accounts used solely to fund payroll or employee benefits), deliver to the Administrative Collateral Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Holders a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance Control Agreement with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after each such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderaccount.
Appears in 3 contracts
Sources: Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement (MedMen Enterprises, Inc.), Securities Purchase Agreement (MedMen Enterprises, Inc.)
Additional Collateral. (a) With respect On each Collateral Date, the Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) cause such Subsidiary (unless it is a Foreign Subsidiary) to any become a "Subsidiary Guarantor" under the Guarantee and Collateral Agreement, (ii) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary) to become a "Grantor" under each relevant Collateral Agreement, (iii) cause the Capital Stock of any newly created or acquired such Wholly Owned Subsidiary or any newly issued Capital Stock to be pledged pursuant to the relevant Collateral Agreement (except that, if such Subsidiary is a Foreign Subsidiary, no shares of any existing common stock of such Subsidiary acquired after the Original Closing Date shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Borrower or any a Domestic Subsidiary, and then the amount of voting common stock of such Subsidiary to be pledged pursuant to such Collateral Agreement may be limited to 66% of the outstanding shares of voting common stock of such Subsidiary) and (iv) except in the case of a Foreign Subsidiary, take all steps required by the relevant Security Documents and this Agreement to create and perfect Liens in the relevant property of such Subsidiary; provided that the Borrower and its Subsidiaries that is intended shall not be required to be subject to comply with the Lien created by any requirements of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (ithis Section 5.11(a) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to if the Administrative Agent, for in its sole discretion, determines that the benefit cost of such compliance is excessive in relation to the value of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien collateral security to be duly afforded thereby.
(b) If, as of any Collateral Date, any property of the Borrower, any Subsidiary Guarantor that is a "Grantor" under any Collateral Agreement or any Subsidiary that is required to become a "Grantor" pursuant to Section 5.11(a) (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding all other real property) is not already subject to a perfected first priority Lien in accordance with all applicable Requirements favor of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforor the Collateral Agent, as the case may be, the Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and (iii) if cause the relevant Subsidiary to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or the Required Lendersto grant and perfect such Liens, deliver to the Administrative Agent legal opinions relating to the matters including actions described in clauses (i) and (ii) immediately precedingSection 5.12, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to all at the Administrative Agent. Notwithstanding expense of the foregoing, Loan Parties; provided that the Borrower and its Subsidiaries shall not be required to grant comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the Administrative Agent a Lien upon value of the Capital Stock of any Immaterial Subsidiarycollateral security to be afforded thereby.
(bc) With respect to any Person that, subsequent Notwithstanding anything to the Original Closing contrary in this Section 5.11, after the Release Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower property other than Capital Stock shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderbecome Collateral.
Appears in 2 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired Concurrently with the acquisition after the Original Closing Issue Date by the Borrower Company or any Guarantor of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectproperty constituting Collateral (but, promptly (and in any event within 30 days after the acquisition thereof): all cases, other than Excluded Assets):
(i) execute To the extent necessary to perfect the Collateral Agent’s Lien on the Collateral, the Company or such Guarantor, as the case may be, and deliver the Collateral Agent shall enter into such amendments or supplements to the Administrative Agent Security Documents or such amendments additional Mortgages (in each case in registrable or recordable form) and other Security Documents, and, at or prior to the relevant Pledge Agreements times required by this Indenture, the Company shall cause such amendments, supplements, mortgages and other Security Documents to be filed and recorded in all such governmental offices as shall be necessary in order to grant and create a valid first priority Lien on and security interest in such after-acquired property in favor of the Collateral Agent (subject to no Liens except Permitted Liens) and the Company shall complete all other actions necessary to perfect the Collateral Agent’s Lien on such property in accordance with the provisions hereof,
(ii) in the case of additional Collateral which constitutes Real Property, the Company or such other documents Guarantor, as the Administrative Agent case may be, shall deem necessary or advisable also deliver (in the case of clause (I) below, use commercially reasonable efforts to grant deliver) to the Administrative AgentCollateral Agent the following:
(A) policies or certificates of insurance covering such Real Property, which policies or certificates, in the case of liability insurance coverage, shall reflect the Collateral Agent for its benefit and the benefit of the LendersTrustee and the Holders of the Notes, as additional insured and mortgagee;
(B) a policy of title insurance or commitment to issue such a policy having the effect of a policy of title insurance insuring (or committing to insure) the Lien of the new Mortgage to be recorded against such Real Property as a valid and enforceable first priority mortgage or deed of trust lien on the Mortgaged Property described therein, which reasonably assures the Collateral Agent that the Mortgage on such Capital StockReal Property is a valid and enforceable mortgage lien on such Real Property, free and clear of all defects and encumbrances except Permitted Liens and such Mortgage Policy shall include such coinsurance and re-insurance arrangements as substantially similar to those delivered to the Collateral Agent under this Indenture;
(iiC) take all actions necessary or advisable proper fixture filings under the Uniform Commercial Code on Form UCC-1 for filing under the Uniform Commercial Code in the appropriate jurisdiction in which such Real Property is located, desirable to cause such Lien perfect the security interests in fixtures purported to be duly perfected created by the Security Documents in accordance favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders;
(D) proper financing statements on Form UCC-1 for filing under the Uniform Commercial Code with the secretary of state of the state in which the Company or Guarantor, as applicable, is located, to perfect the security interests in personal property purported to be created by the Security Documents in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders;
(E) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title company to issue the Mortgage Policies, endorsements and coverages contemplated above;
(F) evidence of payment by the Company of all applicable Requirements mortgage policy premiums, search and examination charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of Lawthe Security Documents, including delivering all such original certificates evidencing such Capital Stock fixture filings and issuance of the mortgage policies referred to above;
(G) an opinion, addressed to the Administrative Agent together Collateral Agent, of local counsel in each state where a Mortgage is delivered after the Issue Date in form and substance substantially similar to the local counsel opinions delivered on the Issue Date to the extent the fair market value (as reasonably determined by the Company) of any parcel of Real Property exceeds $7.5 million;
(H) copies of all notices delivered to the lessor under each ground lease (if any) relating to such Real Property, solely with undated stock powers executed in blank thereforrespect to (x) the Company’s or such Guarantor’s compliance under the terms of each ground lease with the applicable provisions of such lease concerning notification to the lessor thereunder of the Company or Guarantor entering into the transactions contemplated by this Section 13.1, and (iiiy) if requested by such notice affording the Administrative Collateral Agent or all of the Required Lendersbenefits and protections of a mortgagee lender, deliver to as set forth in the Administrative Agent legal opinions ground lease; and
(I) UCC-3 termination statements, mortgage releases and other similar lien releases relating to the matters described in clauses release of existing liens (i) and (ii) immediately precedingother than Permitted Liens), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentif applicable. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a The Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and Security Documents encumbering additional Collateral which constitutes Real Property in any event within 30 days after such Person becomes jurisdiction that imposes a Subsidiary): mortgage recording tax will be limited to 125% of its allocated portion of the Notes (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested as reasonably determined by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valueCompany), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Indenture (Toys R Us Property Co II, LLC), Indenture (Toys R Us Inc)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary; provided that if an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, Borrower shall within thirty (30) days of such event comply with the foregoing requirements.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary, Foreign Subsidiary or Foreign TCAS Subsidiary (except as provided below) of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder; provided, that if, after the consummation of any sale of a portion of Capital Stock of the TCAS Subsidiary, the TCAS Subsidiary thereafter becomes a Wholly Owned Subsidiary, then the TCAS Subsidiary shall become a party to the Subsidiary Guarantee and Subsidiary Pledge Agreement and Borrower shall promptly (and in any event within 30 days after such event occurs) comply with the requirements of this subsection 6.10(b) with respect to the TCAS Subsidiary.
Appears in 2 contracts
Sources: Credit Agreement (L 3 Communications Corp), 364 Day Credit Agreement (L 3 Communications Corp)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after In the Original Closing Date by event that the Borrower REIT or any of its Subsidiaries acquires any asset that is intended to be subject to the Lien created by any not a Borrowing Base Asset, then contemporaneously with such acquisition if proceeds of the Pledge Agreements but which is not so subjectLoan are used to acquire such asset, promptly or otherwise within thirty (and in any event within 30 30) days after the acquisition thereof): (i) of such acquisition, Borrower shall cause REIT or such Subsidiary to execute and deliver to the Administrative Agent on behalf of the Lenders a first-priority perfected collateral assignment of all of such Person’s right, title and interest in such asset. If such asset is a Medical Property, such pledge shall be substantially in the form of the Assignment of Interests, with such other changes thereto as may be reasonably required by the Agent, and the Person owning such asset shall provide an Acknowledgement. In the event that such asset is a loan, such pledge shall be a first-priority perfected collateral assignment of all of such Person’s right, title and interest in and to the loan documents and other rights and privileges relating thereto, such assignment to be substantially in the form of the Assignment of Documents, with such other changes thereto as may be reasonably required by the Agent. In the event that such asset is any other type of asset, Borrower shall cause to be executed and delivered to Agent simultaneously with such acquisition, a first-priority perfected collateral assignment of such assets pursuant to such documents as Agent may reasonably require. Borrower shall further cause to be delivered to Agent such amendments to diligence items, searches, certificates, resolutions, financing statements, opinions, and other items as Agent may require.
(b) In the relevant Pledge Agreements event that the IPO Conditions Satisfaction Date shall not have occurred on or before December 31, 2015 (or such other documents as the Administrative Agent shall deem necessary or advisable later date if extended in accordance with this Agreement), Borrower shall, within fifteen (15) days of request of Agent, transfer to KeyBank all operating, deposit and collection accounts of Borrower and its Subsidiaries and grant to the Administrative Agent, Agent for the benefit of the Lenders, Lenders a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly first-priority perfected lien and security interest in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing accounts pursuant to such Capital Stock to the Administrative documentation as Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingmay reasonably require, which opinions security agreement shall provide that such funds shall be in form and substance, and from counsel, reasonably satisfactory released to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock provided that there is no Event of any Immaterial SubsidiaryDefault.
(bc) With respect In the event that the IPO Conditions Satisfaction Date shall have occurred, and provided no Default or Event of Default exists, Agent shall release the Collateral pledged pursuant to any Person that, subsequent to this §5.7 from the Original Closing Date, becomes a direct or indirect Subsidiary lien and security interest of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderSecurity Documents.
Appears in 2 contracts
Sources: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to any become a “Subsidiary Guarantor” and a “Grantor” under the Guarantee and Collateral Agreement and, after the occurrence of the Ratings Event, each other relevant Security Document, (ii) cause the Capital Stock of such Wholly Owned Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or a Subsidiary thereof), no Capital Stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Domestic Subsidiary, and then the amount of voting stock of such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to 65% of the outstanding shares of voting stock of such Subsidiary, (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge and (C) if the pledge of the Capital Stock of any newly created such Wholly Owned Subsidiary would result in a violation of any laws, regulations or acquired Subsidiary or orders of any newly issued Governmental Authority, no shares of the Capital Stock of any existing such Subsidiary acquired after shall be pledged) and (iii) except in the Original Closing Date by case of a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower or any of and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is intended excessive in relation to the value of the collateral security to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectafforded thereby.
(b) Promptly, promptly (and in any event within 30 days after (or such longer period as is reasonably acceptable to the acquisition thereof): Administrative Agent), following the first date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is “Ba2” or less and the corporate credit rating of the Parent Borrower from S&P is “BB” or less (such date, the “Ratings Event”), the Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents, in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all property of such Person (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding (A) all other real property, (B) Capital Stock not required to be pledged pursuant to Section 5.11(a), (C) assets that cannot be pledged as collateral because the pledge thereof would result in a default, breach or other violation of then existing Contractual Obligations or laws, regulations or orders of any Governmental Authority and (D) those assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) that is not already subject to a perfected first priority Lien on such Capital Stock, (except as permitted by Section 6.3) in favor of the Administrative Agent and (ii) take all take, and cause the relevant Subsidiaries to take, such actions as shall be necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if reasonably requested by the Administrative Agent or the Required Lendersto grant and perfect such Liens, deliver to the Administrative Agent legal opinions relating to the matters including actions described in clauses (i) Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower its Subsidiaries shall not be required to grant comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) If, as of any Collateral Date following the Ratings Event, any property of the Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any Security Document or any Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) is not already subject to a perfected first priority Lien (except to the same extent as not required pursuant to Section 5.11(b) or as permitted by Section 6.3) in favor of the Administrative Agent, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien upon under the Capital Stock relevant Security Documents and will take, and cause the relevant 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 Section 5.12, all at the expense of any Immaterial Subsidiarythe Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(c) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(bd) With respect to any Person that, subsequent Notwithstanding anything to the Original Closing Datecontrary in this Section 5.11 or any other Loan Document, becomes a direct or indirect Subsidiary prior to the occurrence of the BorrowerRatings Event, promptly no property other than Capital Stock (subject to the exceptions specified in Section 5.11(a)) shall be required to become Collateral.
(e) Promptly, and in any event within 30 days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first date after such Person becomes a Subsidiary): the Release Date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is “Ba2” or less and the corporate credit rating of the Parent Borrower from S&P is “BB” or less, the Parent Borrower shall (i) execute and deliver, and cause such new each Subsidiary Guarantor to become a party to the Subsidiary Pledge Agreement execute and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lendersdeliver, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoingParent Borrower and each Subsidiary Guarantor shall grant to the Administrative Agent, no Immaterial Subsidiary or Foreign Subsidiary for the benefit of the Borrower Lenders, a security interest in all property (and types of property) of such Person that constituted Collateral under the Guarantee and Collateral Agreement as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock not required to be pledged pursuant to Section 5.11(a)) and (ii) take, and cause the relevant Subsidiaries to take, such actions as shall be required necessary or reasonably requested by the Administrative Agent to execute grant and perfect such Liens, including actions described in Section 5.12, all at the expense of the Loan Parties.
(f) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, the Administrative Agent and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any purported Liens on): (i) the assets transferred to a Subsidiary Guarantee Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction”) transferred, or Subsidiary Pledge Agreementin respect of which security interests are granted, and no more than 65% of pursuant to a Qualified Receivables Transaction, (iii) if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such a Lien, the Capital Stock or debt (whether or not represented by promissory notes) of or equity interests in any Foreign Subsidiary of issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies Subsidiaries, in each case in connection with a Qualified Receivables Transaction permitted by Section 6.6(c) and (such determination to be made on the basis of fair market value), shall be iv) Capital Stock not required to be pledged hereunderpursuant to Section 5.11(a), (b) or (c).
Appears in 2 contracts
Sources: Credit Agreement (SPX Corp), Credit Agreement (SPX Corp)
Additional Collateral. (a) With respect to (i) any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary property acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be Collateral subject to the Lien created by any of the Pledge Agreements Collateral Documents but which is not so subjectsubject (including, without limitation, all Equity Interests held by the Operating Partnership, the Borrower or any Subsidiary Guarantor in any newly-formed or acquired Subsidiary (other than an Excluded Pledge Subsidiary) of the Operating Partnership) and/or (ii) all Equity Interests of a Subsidiary of the Operating Partnership that ceases to be an Excluded Pledge Subsidiary after the Original Closing Date, promptly (and in any event within 30 10 days after the acquisition thereof): thereof or the date on which such Subsidiary ceases to be an Excluded Pledge Subsidiary, as applicable) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital Stockproperty or Equity Interests subject to no Liens other than Liens permitted under Section 7.01(a), and (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements Laws, including, without limitation, the delivery of Law, including delivering all such original the certificates evidencing such Capital Stock representing any Equity Interests to be included in the Administrative Agent Collateral (together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank therefor, by a duly authorized officer of the holder(s) of such Equity Interests) and (iii) if the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Required Lenders, Agent. Each Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to such documents as the Administrative Agent a Lien upon shall reasonably require to confirm the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person thatvalidity, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary perfection and priority of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Lien of the Borrower shall be required to execute a Subsidiary Guarantee Collateral Documents on any such properties or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderEquity Interests.
Appears in 2 contracts
Sources: Credit Agreement (American Residential Properties, Inc.), Credit Agreement (American Residential Properties, Inc.)
Additional Collateral. (a) With respect to any Capital Stock new Subsidiary (other than any type of any newly Subsidiary referred to in the following parenthetical so long as it qualifies as such or is subject to the restrictions referred to therein) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Non-Recourse Subsidiary, Shell Subsidiary, Excluded Acquired Subsidiary, Qualified LaGrange Entity or Regulated Subsidiary ceases to qualify as such, it being understood that such Subsidiaries will not be subject required to the Lien created by any of the Pledge Agreements but which is not so subjectbecome Subsidiary Guarantors until such time), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, or the Borrower, as the case may be, a Lien on perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such Capital Stocknew Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, limited in the case of the Equity Interests of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary, and (ii) take all actions necessary or advisable any Collateral with respect to cause such Lien to be duly perfected new Subsidiary as described in accordance with all applicable Requirements of Lawthe Guarantee and Collateral Agreement, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iiib) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described certificates, if any, representing such Equity Interests (constituting securities within the meaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes or other instruments evidencing Intercompany Obligations and all other rights and interests constituting Collateral, together with, as applicable, undated powers, instruments of transfer and endorsements, in clauses blank, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) except in the case of a Foreign Subsidiary, cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Incremental Activation Notice (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/)
Additional Collateral. (a) With respect to any Capital Stock of any newly new Subsidiary (other than a Foreign Subsidiary) created or acquired Subsidiary or any newly issued Capital Stock after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary acquired after the Original Closing Date that ceases to be a Foreign Subsidiary), by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectSubsidiaries, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Guarantee and Pledge Agreements or such other documents Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on perfected first priority security interest in the Capital Stock of such new Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iiiii) cause such new Subsidiary (A) to become a party to the Guarantee and Pledge Agreement and (B) to take all such actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock grant to the Administrative Agent together for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Pledge Agreement with undated stock powers executed respect to such new Subsidiary, including, without limitation, the filing of Uniform Commercial Code financing statements in blank thereforsuch jurisdictions as may be required by the Guarantee and Pledge Agreement or by law or as may be requested by the Administrative Agent, and (iiiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be substantially in clauses the forms attached hereto as Exhibits A-1 and A-2.
(b) With respect to any new Foreign Subsidiary created or acquired after the Closing Date by the Borrower or any of its Subsidiary Guarantors, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Pledge Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Foreign Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Subsidiary be required to be so pledged), (ii) immediately precedingdeliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(c) With respect to any new Capital Stock created or acquired after the foregoing, Closing Date by the Borrower shall not be required or any of its Subsidiaries in connection with a transaction described in the last sentence of subsection 7.6, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Pledge Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent Agent, for the benefit of the Lenders, a Lien upon perfected first priority security interest in such Capital Stock (provided that in no event shall more than 65% of the total outstanding Capital Stock of any Immaterial new Subsidiary be required to be so pledged if such Subsidiary is a Foreign Subsidiary.
), (bii) With respect to any Person that, subsequent deliver to the Original Closing DateAdministrative Agent the certificates representing such Capital Stock, becomes together with undated stock powers, in blank, executed and delivered by a direct or indirect Subsidiary duly authorized officer of the BorrowerBorrower or such Subsidiary, promptly (as the case may be, and take such other action as may be necessary or, in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary the opinion of the Administrative Agent, desirable to become a party to perfect the Subsidiary Pledge Agreement and Lien of the Subsidiary Guarantee Administrative Agent thereon, and (iiiii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingabove, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Credit Agreement (General Chemical Group Inc), Credit Agreement (General Chemical Group Inc)
Additional Collateral. (a) With respect to any Capital Stock new Subsidiary (other than any Specified Excluded Subsidiary so long as it qualifies or subject to the proviso of the definition of “De Minimis Subsidiary”, at the option of the Borrower, any newly De Minimis Subsidiary) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Specified Excluded Subsidiary ceases to qualify as such, it being understood that such Subsidiaries will not be subject required to the Lien created by any of the Pledge Agreements but which is not so subjectbecome Subsidiary Guarantors until such time), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, or the Borrower, as the case may be, a Lien perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such new Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, (a) limited in the case of the Equity Interests of any Foreign Subsidiary or Foreign Holding Company, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary or Foreign Holding Company and (b) excluding any Equity Interests of such Subsidiary in excess of the maximum amount of such Equity Interests that could be included in the Collateral without creating, in connection with the pledge thereof under any class of debt securities that is secured on a pari passu basis with the Obligations, a requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act for separate financial statements of such Capital StockSubsidiary to be included in filings by the Borrower with the SEC, and (ii) take all actions necessary or advisable any Collateral with respect to cause such Lien to be duly perfected new Subsidiary as described in accordance with all applicable Requirements of Lawthe Guarantee and Collateral Agreement, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iiib) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described certificates, if any, representing such Equity Interests (constituting securities within the meaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes or other instruments evidencing Intercompany Obligations and all other rights and interests constituting Collateral, together with, as applicable, undated powers, instruments of transfer and endorsements, in clauses blank, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Cco Holdings Capital Corp), Restatement Agreement (Charter Communications, Inc. /Mo/)
Additional Collateral. (a) With respect to any Capital Stock of any newly new Subsidiary (other than a Shell Subsidiary so long as it qualifies as such) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Restatement Effective Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Non-Recourse Subsidiary ceases to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectqualify as such), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected first priority security interest in accordance with all applicable Requirements the Equity Interests and intercompany obligations of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested that are held by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65(limited, in the case of Equity Interests of any Foreign Subsidiary, to 66% of the assets total outstanding Equity Interests of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valueForeign Subsidiary), shall (b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests, and any intercompany notes evidencing such obligations, together with undated stock powers and endorsements, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and (c) except in the case of a Foreign Subsidiary or an Excluded Acquired Subsidiary (until it ceases to qualify as such), cause such new Subsidiary (i) to become a party to the Guarantee and Collateral Agreement and (ii) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required to by the Guarantee and Collateral Agreement or by law or as may be pledged hereunderrequested by the Administrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Charter Communications Inc /Mo/), Credit Agreement (Charter Communications Holdings LLC)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the The Borrower or any will grant and will cause each of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent as security for the Indebtedness a perfected Lien on the Borrower's or such Subsidiary's interest in any Oil and Gas Properties that are (i) acquired after the date hereof at the cash acquisition cost to the Borrower or such Subsidiary equal to or exceeding $1,000,000, and (ii) do not constitute Proved Reserves, which Lien will be created and perfected by and in accordance with the provisions of deeds of trust, security agreements and financing statements, or other Loan Documents, all in form substantially the same as the New Mortgage (subject to such changes as are necessary as a result of, to reflect and/or to account for changes in applicable law) and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes.
(b) The Borrower will grant and will cause each of its Subsidiaries to grant to the Agent as security for the Indebtedness a Lien interest (subject only to Excepted Liens and the matters set forth on Schedule 7.10 hereto) on the Borrower's or such Subsidiary's interest in any Oil and Gas Properties identified after the Closing Date as containing Proved Reserves, which Lien will be created and perfected by and in accordance with the provisions of deeds of trust, security agreements and financing statements, or other Loan Documents, all in form substantially the same as the Standard Mortgage (subject to such changes as are necessary as a result of, to reflect and/or to account for changes in applicable law) and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes.
(c) Concurrently with the granting of the Lien or other action referred to in Section 8.09(b) above, the Borrower will provide to the Agent title information in form and substance satisfactory to the Agent in its sole discretion with respect to the Borrower's and its Subsidiaries' interests in such Oil and Gas Properties to the extent needed to cause the Agent to have received, together with title information previously delivered to the Agent, satisfactory title information on at least 90% of the value of the proved Hydrocarbon Interests evaluated by the most recent Reserve Report.
(d) Also, promptly after the filing of any new Loan Document in any state, other than the New Mortgage and any other mortgage filed pursuant to subsection (a) of this Section 8.09 or any other mortgage substantially in the form of the New Mortgage, upon the reasonable request of the Agent, the Borrower will provide to the Agent an opinion addressed to the Agent for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be Lenders in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent in its sole discretion from counsel acceptable to Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person thatstating that such Loan Document is valid, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (binding and enforceable in accordance with its terms and in any event within 30 days after legally sufficient form for such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderjurisdiction.
Appears in 2 contracts
Sources: Subordinated Credit Agreement (Shell Capital Inc), Subordinated Credit Agreement (Brigham Exploration Co)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower Parent, the Borrowers or any of its their Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (y) any assets described in paragraph (b) of this Section and (z) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent Agent, with respect to any material fee real property acquired by the Parent, the Borrowers or their Subsidiaries after the Required LendersClosing Date, deliver to the 65 59 Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, substance and from counsel, counsel reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Administrative Agent: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the relevant Pledge Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Parent, the Individual Shareholders, the Borrowers or any of their Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers duly executed and delivered in blank, (iii) cause such new Subsidiary (A) to become a Borrower party hereto (in the case of a Subsidiary of the Parent) or a party to a guarantee and a security agreement (in the case of a Subsidiary Pledge Agreement of the Borrowers), in each case pursuant to documentation which is in form and substance satisfactory to the Subsidiary Guarantee Administrative Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by such security agreement 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 requested by the Administrative Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Kirklands Inc), Credit Agreement (Kirklands Inc)
Additional Collateral. (ai) With respect Subject to applicable law, each Borrower will cause any Capital Stock of any newly created domestic Subsidiaries formed or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date date of this Agreement to become a guarantor of the Obligations by executing a guaranty in form and substance reasonably satisfactory to the Lender or a joinder to this Agreement, and to grant first priority Liens to the Lender in all property of such Subsidiary pursuant to security documents in form and substance reasonably satisfactory to the Lender; (ii) each Borrower or any will cause (1) 100% of the issued and outstanding Equity Interests of each of its domestic Subsidiaries that is (other than any domestic foreign subsidiary holding company) and (2) 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 domestic foreign subsidiary holding company owned by any Borrower to be subject at all times to a first priority, perfected Lien in favor of the Lender pursuant to the terms and conditions of the Loan Documents or other security documents as the Lender shall reasonably request; (iii) without limiting the foregoing, each Borrower will, and will cause each Subsidiary to, execute and deliver, or cause to be executed and delivered, to the 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), which may be required by law or which the 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 (subject to Permitted Liens) of the Liens created or intended to be created by the Collateral Documents, all at the expense of the Borrowers; and (iv) subject to any applicable thresholds or limitations in the Collateral Documents, if any material assets (including any real property or improvements thereto or any interest therein) are acquired by any Borrower or its Subsidiaries outside the ordinary course of business after the date of this Agreement (other than assets constituting Collateral that become subject to the Lien created by any in favor of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver Lender pursuant to the Administrative Agent such amendments to Collateral Documents upon acquisition thereof or specifically excluded collateral), the relevant Pledge Agreements or such other documents as Borrowers will (1) notify the Administrative Agent shall deem necessary or advisable to grant to the Administrative AgentLender thereof and, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if reasonably requested by the Administrative Agent or Lender, cause such assets to be subjected to a Lien securing the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) Obligations and (ii2) immediately precedingtake, which opinions and cause each Subsidiary to take, such actions as shall be in form and substance, and from counsel, necessary or reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required LendersLender to grant and perfect such Liens, deliver to the Administrative Agent legal opinions relating to the matters including actions described in clause (iiii) immediately precedingof this Section, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to all at the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary expense of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderBorrowers.
Appears in 2 contracts
Sources: Credit Agreement (Ares Acquisition Corp), Credit Agreement (Ares Acquisition Corp)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) or (c) of this subsection, (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements and (z) property acquired by a Foreign Subsidiary), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary (other than a Foreign Subsidiary), promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Agent: (i) execute and deliver to the Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the Stock Pledge Agreement as the Agent shall deem necessary or advisable to grant to the Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Subsidiary Guarantee Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by the Security Agreement 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 requested by the Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(c) With respect to any Person that, subsequent to the foregoingClosing Date, no Immaterial Subsidiary or becomes a Foreign Subsidiary Subsidiary, promptly upon the request of the Agent: (i) execute and deliver to the Agent a new pledge agreement or such amendments to the Stock Pledge Agreement as the Agent shall deem necessary or advisable to grant to the Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver to the Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or equity interests in any such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock and (iii) if requested by the Agent, deliver to the Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Agent.
(d) Notwithstanding anything to the contrary in this subsection 5.10, paragraphs (a), (b) and (c) shall not apply to any property, Subsidiary or Foreign Subsidiary created or acquired after the Closing Date, as applicable, to which the Agent has determined in its sole discretion that the collateral value thereof is insufficient to justify the difficulty, time and/or expense of obtaining a perfected security interest therein.
(e) If the Borrower or any Subsidiary creates any initial or additional Lien pursuant to subsection 6.3(l) upon any of its property, assets or revenues to secure Indebtedness incurred under subsection 6.2(i), such Borrower or Subsidiary shall simultaneously grant a pari passu Lien on such property, assets or revenues to secure the Loan Obligations. If any Subsidiary that is not a Guarantor guarantees the payment of Indebtedness incurred under subsection 6.2(i) of the Borrower or any of its Subsidiaries if more than 65% of the assets of Subsidiary, then such Subsidiary are securities of foreign companies (such determination shall simultaneously become a party to be made on the basis of fair market value), shall be required to be pledged hereunderSecurity Agreement and a Guarantor.
Appears in 2 contracts
Sources: Term Loan Agreement (Infocrossing Inc), Term Loan Agreement (Sandler Capital Management)
Additional Collateral. (a) With Subject to subsection 6.9(d), with respect to any Capital Stock of any newly created assets acquired, created, or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired developed after the Original Closing Date by any Credit Party (including, without limitation, the Borrower filing of any applications for the registration or issuance of any item of its Subsidiaries material intellectual property) that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (but, in any event, excluding (i) any assets described in paragraph (b) or (c) of this subsection, (ii) assets acquired or owned pursuant to subsection 7.6(g)(i) and (iii) immaterial assets), promptly (and in any event within 30 days after the acquisition thereofthereof or after reasonable request in accordance with clause (i) below): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, and (ii) take all actions necessary or advisable to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing jurisdictions as may be reasonably requested by the Administrative Agent and the filing, not more often than quarterly, of any security agreements or other documents with the United States Patent and Trademark Office or the United States Copyright Office or the office of any similar foreign registry as may be reasonably requested by the Administrative Agent.
(b) With respect to any Person that is or becomes a Subsidiary (other than any Foreign Subsidiary of the Borrower or of any other U.S. Person) that has material assets or that guarantees Borrower’s obligations under the Senior Secured Notes or the Second Lien Facility, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the Collateral Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by Bermuda Holdings or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank thereforby a duly authorized officer of Bermuda Holdings or such Subsidiary, as the case may be, and (iii) if cause such new Subsidiary (A) to become a party to the Subsidiary Guaranty, (B) to become a party to the Collateral Agreement or such comparable documentation which is in form and substance reasonably satisfactory to the Administrative Agent, and (C) to take all actions necessary or advisable to cause the Lien created by the Collateral Agreement to be duly perfected to the extent required by such agreement 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 is or becomes a Foreign Subsidiary of the Borrower or any other U.S. Person that has material assets, promptly (and in any event within 90 days after such Person becomes a Subsidiary): (i) execute and deliver to the Administrative Agent a new pledge agreement or such amendments to the Required Collateral Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any other U.S. Person (provided that, to the extent that any such pledge of the Capital Stock of Foreign Subsidiary of the Borrower is made to support the obligations of the Borrower it shall be limited to no more than 65% of the Capital Stock of such Foreign Subsidiary in respect of the Borrower’s Obligations), and (ii) if such Capital Stock is issued in certificated form, deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock, and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(d) Upon the foregoingrequest of the Administrative Agent, Bermuda Holdings will, and will cause its Subsidiaries to, promptly grant to the Administrative Agent, within 120 days of such request, security interests and mortgages (a “Mortgage”) in such owned Real Property of Bermuda Holdings and its Subsidiaries as is acquired after the Closing Date by Bermuda Holdings or any of its Subsidiaries and that, together with any improvements thereon, individually has a value of (x) in the case of a Domestic Subsidiary, at least $2,500,000 and (y) in the case of a Foreign Subsidiary, at least $5,000,000 (and the Administrative Agent has reasonably determined that the cost of perfecting a security interest in such foreign asset is reasonable in relation to the benefits to the Lenders of the security afforded thereby), as additional security for the obligations of the Credit Parties under any Credit Document (unless the subject property is already mortgaged to a third party to the extent permitted by subsection 7.2) provided that any such Mortgage in property of a Foreign Subsidiary of the Borrower shall not secure the obligations of the Borrower. Such Mortgages shall be required granted pursuant to grant documentation reasonably satisfactory in form and substance to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect and shall constitute valid and enforceable perfected Liens subject only to any Person that, subsequent Permitted Liens and such other Liens reasonably acceptable to the Original Closing DateAdministrative Agent. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, becomes a direct or indirect Subsidiary perfect, preserve and protect the Liens in favor of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary Administrative Agent required to become a party be granted pursuant to the Subsidiary Pledge Agreement Mortgages and the Subsidiary Guarantee all taxes, fees and (ii) if other charges payable in connection therewith shall be paid in full. If requested by the Administrative Agent or the Required Lenders, deliver the Borrower shall provide a lender’s title policy with respect to each such Mortgage paid for by the Borrower, issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingAgent, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute insuring each Mortgage as a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made first lien on the basis of fair market value), shall be required relevant Real Property and subject only to be pledged hereunderPermitted Liens and other Liens expressly agreed to by the Administrative Agent.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.), Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any The Company will cause each of its Subsidiaries that is intended Subsidiary Guarantors which has not previously done so to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such duly executed joinders and amendments to the relevant Pledge Agreements or such and Security Agreement and, if applicable, the other documents as the Administrative Agent shall deem necessary or advisable to grant Security Documents, in each case, in form and substance reasonably satisfactory to the Administrative Agent, for the benefit of the Lenders, a Lien on and to take such Capital Stock, (ii) take all actions other action as reasonably shall be necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to as the Administrative Agent together with undated stock powers executed reasonably shall request to grant to the Collateral Agent a valid and enforceable first priority perfected security interest in blank thereforall Collateral of such Subsidiary Guarantor (subject to any Liens permitted by Section 11.3). Each such joinder and amendment shall be accompanied by such evidence of the taking of all actions as may be necessary or appropriate for the perfection and first priority of such security interest (including, without limitation, the filing of any necessary Uniform Commercial Code financing statements) and (iii) if such resolutions, incumbency certificates and legal opinions as are reasonably requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, all of which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingforegoing or any other provision of this Agreement or any other Loan Document, (i) the Borrower Collateral shall not be required to grant exclude assets to the Administrative extent that a security interest therein could reasonably be likely to result in a material adverse tax consequence to the Company, and any other assets as to which the Collateral Agent and the Company reasonably agree that the cost or other consequence of obtaining such a Lien upon security interest or perfection thereof are excessive in relation to the Capital Stock of any Immaterial Subsidiary.
value afforded thereby, (bii) With with respect to any Person that, subsequent to Domestic Subsidiary (other than an Excluded Subsidiary) formed or acquired on or after the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, Loan Parties shall promptly (and in any event within 30 not longer than ninety (90) days after the date such Person becomes a Subsidiary): Domestic Subsidiary is formed or acquired (i) cause or such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by longer period as the Administrative Agent may agree) comply with provisions of Sections 10.10 through 10.15 (inclusive) and Section 10.19 and (iii) with respect to any Domestic Subsidiary that is initially an Excluded Subsidiary but subsequently becomes no longer an Excluded Subsidiary, the Loan Parties shall promptly and in any event not longer than ninety (90) days after the date such Domestic Subsidiary becomes no longer an Excluded Subsidiary (or the Required Lenders, deliver to such longer period as the Administrative Agent legal opinions relating to may agree) comply with the matters described in clause provisions of Sections 10.10 through 10.15 (iinclusive) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderSection 10.19.
Appears in 2 contracts
Sources: Term Loan Agreement (Revlon Consumer Products Corp), Revolving Credit Agreement (Revlon Consumer Products Corp)
Additional Collateral. To the extent not delivered to the Administrative Agent on or before the Closing Date, the Borrower agrees to (or cause each of its applicable Subsidiaries to) do promptly each of the following:
(a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such supplements, and amendments to the relevant Pledge Agreements or such other documents Agreement (or, in the case of Equity Interests of any Subsidiary of the Borrower that is not a Domestic Subsidiary, appropriate foreign law pledge agreements) as the Administrative Agent shall deem deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the LendersSecured Parties, a Lien on perfected first priority security interest in the Equity Interests of such Capital Stock, Subsidiary that are owned by the Borrower (iiand of any Subsidiary that is not directly owned by the Borrower as contemplated in Section 3.01(i)) take all actions necessary or advisable to cause such Lien and requested to be duly perfected pledged by the Administrative Agent; provided, however, that, unless otherwise agreed by the Borrower and the Administrative Agent, in accordance with all applicable Requirements no event shall such the Borrower be required to pledge in excess of Law, including delivering all such original certificates evidencing such Capital Stock 66% of the outstanding voting stock of any direct Subsidiary of the Borrower that is not a Domestic Subsidiary or to pledge the Equity Interests of any Insurance Subsidiary or the Securitization SPV.
(b) deliver to the Administrative Agent the certificates (if any) representing such Equity Interests, together with in the case of such certificated Equity Interests, undated stock powers executed endorsed in blank therefor, executed and delivered by an officer of the Borrower; and
(iiic) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingabove, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Medco Health Solutions Inc), Credit Agreement (Medco Health Solutions Inc)
Additional Collateral. (a) With respect to (i) any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary property acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be Collateral subject to the Lien created by any of the Pledge Agreements Collateral Documents but which is not so subjectsubject (including, without limitation, all Equity Interests held by any Borrower or Subsidiary Guarantor in any newly-formed or acquired Subsidiary (other than an Excluded Pledge Subsidiary) of ESR OP) and/or (ii) all Equity Interests of a Subsidiary Guarantor that ceases to be an Excluded Pledge Subsidiary after the Closing Date, in each case unless the Exemption Conditions exist at such time with respect to the Subsidiary that is the owner of such property or Equity Interests, promptly (and in any event within 30 days after the acquisition thereof): thereof or the date on which such Subsidiary Guarantor ceases to be an Excluded Pledge Subsidiary, as applicable) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital Stockproperty or Equity Interests subject to no Liens other than Liens permitted under Section 7.01(a), and (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements Laws, including, without limitation, the delivery of Law, including delivering all such original the certificates evidencing such Capital Stock representing any Equity Interests to be included in the Administrative Agent Collateral (together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank therefor, by a duly authorized officer of the holder(s) of such Equity Interests) and (iii) if the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or Agent. The Parent and the Required Lenders, Borrowers shall otherwise take such actions and execute and/or deliver to the Administrative 137 Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to such documents as the Administrative Agent a Lien upon shall reasonably require to confirm the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person thatvalidity, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary perfection and priority of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Lien of the Borrower shall be required to execute a Subsidiary Guarantee Collateral Documents on any such properties or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderEquity Interests.
Appears in 2 contracts
Sources: Credit Agreement (Empire State Realty OP, L.P.), Credit Agreement (Empire State Realty Trust, Inc.)
Additional Collateral. (a) With respect to any Capital Stock new Subsidiary (other than any type of any newly Subsidiary referred to in clause (x) or (y) below so long as it qualifies as such or is subject to the restrictions referred to therein) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that (x) any Non-Recourse Subsidiary, Shell Subsidiary, Excluded Acquired Subsidiary, Qualified LaGrange Entity or Regulated Subsidiary ceases to qualify as such, or (y) any Subsidiary previously prohibited from, or unable to become, a Subsidiary Guarantor pursuant to Qualified Credit Support Limitations contained in the CCH Senior Note Indenture or any Qualified Indebtedness of any Qualified Parent Company that is intended to be subject to the Lien created by any a member of the Pledge Agreements but which is CCI Group shall be permitted or able to become a Subsidiary Guarantor or such Indebtedness shall no longer be outstanding, it being understood that such Subsidiaries will not so subjectbe required to become Subsidiary Guarantors until such time), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, or the Borrower, as the case may be, a Lien on perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in (i) the Equity Interests of such Capital Stocknew Subsidiary and all other property of the type that would constitute Collateral of such new Subsidiary (including Intercompany Obligations) that are held by Holdings, the Borrower or any of its Subsidiaries, limited in the case of the Equity Interests of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary, and (ii) take all actions necessary or advisable any Collateral with respect to cause such Lien to be duly perfected new Subsidiary as described in accordance with all applicable Requirements of Lawthe Guarantee and Collateral Agreement, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iiib) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described certificates, if any, representing such Equity Interests (constituting securities within the meaning of Section 8-102(a)(15) of the New York UCC), and any intercompany notes or other instruments evidencing Intercompany Obligations and all other rights and interests constituting Collateral, together with, as applicable, undated powers, instruments of transfer and endorsements, in clauses blank, executed and delivered by a duly authorized officer of Holdings, the Borrower or such Subsidiary, as the case may be, and (c) except in the case of a Foreign Subsidiary, cause such new Subsidiary (i) to deliver an Assumption Agreement with respect to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest, subject to Liens not prohibited by Section 7.3, in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Charter Communications Inc /Mo/), Credit Agreement (Charter Communications Inc /Mo/)
Additional Collateral. Each Borrower and each Guarantor acknowledges that it is its intention to provide the Agent with a Lien on all the property (aexcluding automobiles, but including, without limitation, any property acquired in connection with the Related Transactions) With respect of the Borrowers, the Guarantors and their respective subsidiaries (personal, real and mixed), whether now owned or hereafter acquired (other than as agreed to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date in writing by the Agent), subject only to Liens permitted hereunder. Without limitation of Section 3.03(c) hereof, each Borrower and each Guarantor shall from time to time promptly notify the Agent of the acquisition by any of them or any of its Subsidiaries that is intended their respective subsidiaries of any material property in which the Agent does not then hold a perfected Lien (other than as agreed to be subject to in writing by the Lien created Agent), or the creation or existence of any such property, and such person shall, upon request by any of the Pledge Agreements but which is not so subjectAgent, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments or cause to be executed and delivered to the relevant Pledge Agreements Agent pledge agreements, security agreements, mortgages or other like agreements with respect to such property, together with such other documents documents, certificates, opinions of counsel and the like as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agentreasonably request in connection therewith, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substancesubstance satisfactory to the Agent, such that the Agent shall receive valid and from counselperfected first priority Liens (subject to Liens permitted hereby) on all such property (including property which, on the Initial Closing Date, is not subject to a Lien in favor of the Agent). In addition, in the event that any Borrower, any Guarantor or any of their respective subsidiaries acquires or owns any material trademarks, copyrights, patents or other intellectual property, the Borrowers shall notify the Agent promptly in writing and shall execute, or cause the execution of a security agreement and other documents with respect thereto in form and substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower Borrowers and Guarantors shall not only be required obligated to grant exercise reasonable efforts to comply with the requirements of this Section with respect to the Administrative Agent a Lien upon the Capital Stock granting of any Immaterial Subsidiarymortgages on leaseholds.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Supermarket Cigarette Sales Inc), Revolving Credit Agreement (Jitney Jungle Stores of America Inc /Mi/)
Additional Collateral. (a) With respect to any Capital Stock Each of any newly created or acquired Subsidiary or any newly issued Capital Stock Additional Obligor and Borrower hereby unconditionally and absolutely assigns, transfers and sets over unto Lender all of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject Additional Obligor ‘s and Borrower’s right, title and interest in and to the Lien created by any Additional Collateral, it being intended that this assignment be an absolute assignment from Additional Obligor and Borrower to Lender and not merely the granting of a security interest. Until the occurrence of an Event of Default which remains uncured, Additional Obligor and Borrower may retain, use and enjoy the benefits of the Pledge Agreements but which is not so subjectAdditional Collateral. Upon the occurrence and during the continuance of an Event of Default, promptly (and the license described in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agentpreceding sentence shall, for the benefit of the Lendersupon Lender’s written election, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforrevoked, and Lender may elect to exercise any and all of Lender’s rights and remedies hereunder; provided, however, that upon Lender’s acceptance of Additional Obligor’s and/or Borrower’s cure or Lender’s waiver of such Event of Default (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingprovided that no other Event of Default is continuing), the license granted to Additional Obligor and Borrower pursuant to this clause (a) shall not automatically be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryreinstated.
(b) With Subject to applicable Legal Requirements, each of Additional Obligor and Borrower hereby irrevocably constitutes and appoints Lender (and any of its officers) as the true and lawful agent and attorney-in-fact (with full powers of substitution) for Additional Obligor and/or Borrower, to, during the continuance of an Event of Default, demand, receive and enforce Additional Obligor’s and/or Borrower’s rights with respect to the Additional Collateral, to give appropriate receipts, releases, and satisfactions for and on behalf of Additional Obligor and/or Borrower and to do any Person thatand all acts in the name, subsequent place, and stead of Additional Obligor and/or Borrower or in the name of Lender with the same force and effect as Additional Obligor and/or Borrower could do if the foregoing assignment had not been made. The power-of-attorney granted in this clause (b) is deemed to be a power coupled with an interest and shall not terminate until the Original Closing Date, becomes a direct expiration or indirect Subsidiary termination of the Borrowerforegoing assignment.
(c) Each of Additional Obligor and Borrower shall remain liable to, promptly (and shall, perform all of its material obligations under the Additional Collateral. Additional Obligor and Borrower shall, at their sole cost and expense, enforce the Additional Collateral in a commercially reasonable manner and comply with all of its material obligations under the Additional Collateral. Each of Additional Obligor and Borrower shall give Lender notice of any default by any party under the Additional Collateral, in any event within 30 days after such Person becomes case, which is likely to result in a Subsidiary): Material Adverse Effect. So long as (i) cause such new Subsidiary to become a party to each of Additional Obligor and Borrower is acting in the Subsidiary Pledge Agreement and the Subsidiary Guarantee ordinary course of business, and (ii) if requested by no Event of Default has occurred and is continuing, except as otherwise provided in the Administrative Agent Loan Documents, each of Additional Obligor and Borrower may alter, amend, extend, modify, change, cancel or terminate any of the Required LendersAdditional Collateral, deliver provided that such alterations, amendments, extensions, modifications, changes, cancellations and terminations, taken as a whole, are not likely to the Administrative Agent legal opinions relating to the matters described result in clause a Material Adverse Effect. So long as (i) immediately preceding, which opinions shall be each of Additional Obligor and Borrower is acting in form and substancethe ordinary course of business, and from counsel(ii) no Event of Default has occurred and is continuing, reasonably satisfactory to except as otherwise provided in the Administrative Agent. Notwithstanding other Loan Documents, Additional Obligor and Borrower may enter into new Additional Collateral on commercially reasonable terms without Lender’s prior written consent in each instance in accordance with the foregoing, no Immaterial Subsidiary or Foreign Subsidiary terms and provisions of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderLoan Documents.
Appears in 2 contracts
Sources: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: 364 Day Credit Agreement (L 3 Communications Corp), Credit Agreement (Southern California Microwave Inc)
Additional Collateral. (a) With respect to any Capital Stock Upon the formation or acquisition of any newly created new direct or acquired indirect Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower (other than a Foreign Subsidiary or any of its Subsidiaries that is intended to be subject to Non-Material Domestic Subsidiary), the Lien created by any of Borrower shall, at the Pledge Agreements but which is not so subjectBorrower’s expense, promptly within sixty (and in any event within 30 60) days after such formation or acquisition or such longer period as the acquisition thereof): (i) Agent may agree in its sole discretion, cause each such Subsidiary to execute and deliver to the Administrative Agent such amendments a joinder to this Agreement, the Security Agreement and the Guaranty Agreement in form and substance reasonably satisfactory to the relevant Pledge Agreements Agent; provided, further, that, if at any time a Non-Material Domestic Subsidiary shall, together with its consolidated Subsidiaries, have assets, as of the last day of the Borrower’s most recently ended fiscal quarter, with a book value of 5% or more of the total assets of the Borrower and its Subsidiaries on a consolidated basis on such other documents as date, then the Administrative Agent Borrower shall deem necessary or advisable cause such Non-Material Domestic Subsidiary to grant execute and deliver to the Administrative Agent a joinder to this Agreement, the Security Agreement and the Guaranty Agreement in form and substance reasonably satisfactory to the Agent; provided, further, that, if at any time the aggregate book value of the assets of the Domestic Subsidiaries which have not become Subsidiary Loan Parties in accordance with this Section 9.19, together with the assets of their respective consolidated Subsidiaries, shall equal or exceed 10% of the total book value of the assets of the Borrower and its Subsidiaries on a consolidated basis, then the Borrower shall cause one or more additional Domestic Subsidiaries to become Subsidiary Loan Parties in accordance with this Section 9.19; provided, further, that, if at any time the aggregate EBITDA of a Domestic Subsidiary which has not become a Subsidiary Loan Party in accordance with this Section 9.19, together with its consolidated Subsidiaries, shall be greater than or equal to $20,000,000, then the Borrower shall cause such Domestic Subsidiary to become Subsidiary Loan Parties in accordance with this Section 9.19; provided, further, that, notwithstanding anything else to the contrary contained in this clause (a), in no event shall National Beef Leathers, LLC be or become a Subsidiary Loan Party, except upon consent of the Agent.
(b) The Borrower shall cause, and shall cause each other Subsidiary Loan Party to cause, all of its respective property to be subject at all times to first priority perfected Liens in favor of or for the benefit of the LendersAgent on behalf of itself and the other secured parties, subject in each case to Liens permitted by Section 10.1, in accordance with the terms of the Security Agreement. Without limiting the foregoing, subject to the terms of the Security Documents, the Borrower will, and will cause each Subsidiary Loan Party to, execute and deliver, or cause to be executed and delivered, such documents, agreements or 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) 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 Financing Documents and to ensure perfection and priority of the Liens created or intended to be created by the Security Documents, all at the expense of the Borrower.
(c) If, in compliance with the terms and provisions of the Financing Documents, the Borrower or any Subsidiary (i) sells or otherwise transfers equity interests of any Subsidiary Loan Party to a Lien on Person which is not the Borrower or a Subsidiary and after giving effect to such Capital Stocksale or transfer the Borrower and its Subsidiaries cease to own any of the equity interests of such Subsidiary Loan Party, (ii) take all actions necessary liquidates or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and dissolves any Subsidiary Loan Party or (iii) if requested by subject to compliance with clause (a) above, any Subsidiary Loan Party shall be or become a Non-Material Domestic Subsidiary, in each case, the Administrative Agent or will, on behalf of the Required Lenders, execute and deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and Borrower a release of such Subsidiary Loan Party from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge its obligations under this Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderother Financing Documents.
Appears in 2 contracts
Sources: Credit Agreement (Leucadia National Corp), Credit Agreement (National Beef Packing Co LLC)
Additional Collateral. (a) With respect to If after the Closing Date, the Borrower acquires any property (other than Sold Receivables but including, without limitation, the Capital Stock of any newly created Person) in which the Collateral Agent does not have a first-perfected security interest pursuant to the Security Documents, the Borrower shall promptly notify the Agents and the Collateral Agent of such acquisition and, upon the reasonable request of any Agent or acquired the Collateral Agent, shall execute and deliver to the Agents and the Collateral Agent not later than 45 days following such request such documents and instruments (including, without limitation, security agreements and pledge agreements), and take such action (including, without limitation, the filing of financing statements under the U.C.C. in the relevant jurisdictions and the delivery of stock certificates and instruments), as any Agent or the Collateral Agent, may reasonably request in order to grant to the Collateral Agent, as collateral security for the Term Loan Obligations, a first perfected security interest in such property of the Borrower, subject to the Liens permitted by Section 7.2.4.
(b) If after the Closing Date, any Subsidiary or of the Borrower (other than a Controlled Foreign Subsidiary) acquires any newly issued property (other than Sold Receivables but including, without limitation, the Capital Stock of any existing Person) in which the Collateral Agent does not have a first- perfected security interest pursuant to the Security Documents, the Borrower shall promptly notify the Agents and the Collateral Agent of such acquisition and, upon the reasonable request of any Agent or the Collateral Agent, shall cause such Subsidiary acquired to execute and deliver to the Agents and the Collateral Agent not later than 45 days following such request such documents and instruments (including, without limitation, security agreements and pledge agreements) and take such action (including, without limitation, the filing of financing statements under the U.C.C. in the relevant jurisdictions and the delivery of stock certificates and instruments) as any Agent may reasonably request in order to grant to the Collateral Agent, as collateral security for the Revolving Credit Obligations and such Subsidiary's obligations under the Subsidiary Guaranty, a first perfected security interest in such property of such Subsidiary, subject to the Liens permitted by Section 7.2.4.
(c) If after the Original Closing Date by Date, the Borrower or any of its Subsidiaries that is intended to be subject to acquires or creates any new Subsidiary, the Lien created by any Borrower shall promptly notify the Agents and the Collateral Agent of the Pledge Agreements but which is such acquisition or creation and, not so subjectlater than 45 days thereafter, promptly (and in any event within 30 days after the acquisition thereof): shall, (i) if such Subsidiary is not a Controlled Foreign Subsidiary, cause such new Subsidiary to execute and deliver to the Administrative Agent Agents and the Collateral Agent, with counterparts for each Revolving Credit Lender, a Subsidiary Guaranty and, if such amendments new Subsidiary owns any Capital Stock of any other Subsidiary or Person, the Revolving Credit Pledge Agreement in order to pledge such Capital Stock and to execute and deliver to the relevant Pledge Agreements or Collateral Agent a Revolving Credit Security Agreement and, if applicable, a Revolving Credit Copyright Security Agreement, a Revolving Credit Patent Security Agreement and/or a Revolving Credit Trademark Security Agreement, (ii) if such other documents as the Administrative Agent shall deem necessary or advisable to grant Subsidiary is not a Controlled Foreign Subsidiary, deliver to the Administrative Collateral Agent, the Capital Stock of such new Subsidiary, or cause the Subsidiary of the Borrower that owns such Capital Stock to deliver such Capital Stock to the Collateral Agent, to be held by it pursuant to the applicable Stock Agreement and (iii) if such Subsidiary is a Controlled Foreign Subsidiary and is not itself owned by a Controlled Foreign Subsidiary, deliver to the Collateral Agent 65% of the Capital Stock of such new Subsidiary or cause the Subsidiary of the Borrower that owns such Capital Stock to deliver 65% of such Capital Stock to the Collateral Agent to be held by it pursuant to the applicable Pledge Agreement.
(d) As and when required from time to time pursuant to clause (a) or (b) with respect to real properties required to be mortgaged pursuant to clause (a) or (b) (the Section 7.1.7 Properties), the Borrower shall, and shall cause each of the Subsidiaries of the Borrower required to mortgage a Section 7.1.7 Property to, execute and deliver to the Agents and the Collateral Agent, for the benefit of the Term Loan Lenders or the Revolving Credit Lenders, as the case may be, a Lien on such Capital Stockmortgage or leasehold mortgage (as appropriate), (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock form and substance substantially identical to the Administrative Mortgage or Revolving Credit Mortgage, as the case may be (with such changes thereto as are advised by local counsel to the Collateral Agent together with undated stock powers executed as appropriate for the laws of the relevant state) encumbering, as collateral security for the Term Loan Obligations and the Revolving Credit Obligations (and such Subsidiary's obligations under the Subsidiary Guaranty), as the case may be, the relevant Section 7.1.7 Property and in blank thereforconnection therewith, and (iii) if requested by upon the Administrative reasonable request of any Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Collateral Agent. Notwithstanding the foregoing, the Borrower Agents and the Collateral Agent shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary have received each of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.following:
Appears in 2 contracts
Sources: Term Loan Agreement (Specialty Foods Corp), Term Loan Agreement (Specialty Foods Acquisition Corp)
Additional Collateral. (a) With respect to any Capital Stock Upon the occurrence and continuance of any newly created or acquired Subsidiary or any newly issued Capital Stock an Event of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectDefault, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested request by the Administrative Agent or the Required LendersLenders therefor, the Borrower will, and will cause each Subsidiary Loan Party to (i) execute and deliver counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) deliver a policy or policies of title insurance issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.02, together with such endorsements, coinsurance and reinsurance as the Administrative Agent or the Required Lenders may reasonably request, and (iii) deliver such surveys, abstracts, appraisals, legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to other documents as the Administrative Agent a Lien upon or the Capital Stock of Required Lenders may reasonably request with respect to any Immaterial Subsidiarysuch Mortgage or Mortgaged Property.
(b) With respect to any Person that, subsequent to Upon the Original Closing Date, becomes a direct or indirect Subsidiary occurrence and continuance of the Borroweran Event of Default, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested request by the Administrative Agent or the Required LendersLenders therefor, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substanceBorrower will, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial will cause each Subsidiary or Foreign Subsidiary of the Borrower shall be required Loan Party to execute a Subsidiary Guarantee and deliver account control agreements or Subsidiary Pledge Agreementblocked account agreements with respect to all deposit accounts, and no more than 65% of including time, savings, passbook, or other similar accounts maintained with any bank for the Capital Stock of or equity interests in any Foreign Subsidiary benefit of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderLoan Party.
Appears in 2 contracts
Sources: Credit Agreement (Cumulus Media Inc), Credit Agreement (Cumulus Media Inc)
Additional Collateral. (a) With respect to In the event (1) any Capital Stock of Credit Party forms or acquires any Subsidiary which is not an Excluded Subsidiary after the Closing Date, or (2) any Excluded Subsidiary shall no longer be deemed an Excluded Subsidiary, such Credit Party or the Credit Party which controls such former Excluded Subsidiary shall promptly upon (but no later than thirty (30) days after) such formation, acquisition or change in status cause (i) such newly created formed or acquired Subsidiary or any newly issued Capital Stock of any existing former Excluded Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that (each is intended a “New Subsidiary”) to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent Holders such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable Holders may then reasonably require (including, without limitation, a Guaranty and a joinder agreement causing such New Subsidiary to grant become party to the Administrative Agent, for the benefit of the Lenders, Security Agreement as a Lien on such Capital Stock“Grantor” thereunder), (ii) take all actions necessary provide updates to existing schedules and exhibits or advisable new schedules or other disclosures as appropriate to cause modify representations, warranties, covenants, conditions and other provisions applicable to such Lien to be duly perfected New Subsidiary), (iii) a certificate attaching (x) the Organization Documents of such New Subsidiary, (y) resolutions of the board of directors (or similar governing body) of such New Subsidiary approving and authorizing the execution, delivery and performance of the documents described in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to this Section 7.11 and the Administrative Agent together with undated stock powers executed in blank thereforother Operative Documents and the transactions contemplated thereby, and (iiiz) if requested signature and incumbency schedule of such New Subsidiary, all certified as of the date of delivery of such certificate by a Responsible Officer of such New Subsidiary as being true and complete and in full force and effect without modification and (iv) such other instruments, documents, and certificates reasonably required by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described Holders in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryconnection therewith.
(b) With respect to If any Person thatasset (other than real property, subsequent to which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the Original Borrowers) in an amount greater than $1,000,000 is acquired by any Credit Party or any Subsidiary after the Closing Date, Date or owned by an entity at the time it becomes a direct or indirect Subsidiary of the Borrower, promptly Credit Party (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.each case other than
Appears in 2 contracts
Sources: Securities Purchase Agreement, Securities Purchase Agreement
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary Property acquired after the Original Closing Restatement Effective Date by the Borrower or any of its Subsidiaries Loan Party that is intended to be subject to the Lien created by any of the Pledge Agreements Collateral Documents but which is not so subject, promptly (and and, in any event event, within 30 thirty (30) days after such creation or acquisition; provided that the acquisition thereof): Administrative Agent may extend such time period by (x) an additional thirty (30) days in its sole discretion and (y) an additional number of days thereafter as consented to by the Required Lenders) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall deem reasonably necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital StockProperty under applicable Legal Requirements (including applicable foreign Legal Requirements unless the Required Lenders shall determine in their sole discretion that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) subject to no Liens other than Permitted Liens and no senior Liens other than Permitted Prior Liens, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if extent requested by the Administrative Agent or the Required LendersAgent, deliver customary and reasonable opinions of counsel to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be Borrower in form and substance, and from counsel, reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not and (iii) take all actions necessary to cause such Lien to be required to grant duly perfected to the Administrative Agent a Lien upon extent required by such Collateral Documents in accordance with all applicable Legal Requirements, including the Capital Stock filing of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and financing statements in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if jurisdictions as may be reasonably requested by the Administrative Agent or Agent. Subject to the Required Lenderslimitations set forth herein and in the other Loan Documents, the Borrower and the other Loan Parties shall otherwise take such actions and execute and/or deliver to the Administrative Agent legal opinions relating such documents as the Administrative Agent shall reasonably require to confirm the matters described validity, perfection and priority of the Lien of the Collateral Documents against such after‑acquired Properties, all in clause (i) immediately precedingform, which opinions shall be in form content and substance, and from counsel, scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Turning Point Brands, Inc.), Second Lien Credit Agreement (Turning Point Brands, Inc.)
Additional Collateral. (a) With respect to In the event that any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be Credit Party acquires a Material Real Estate Asset and such interest has not otherwise been made subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and Collateral Documents in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative favor of Collateral Agent, for the benefit of Secured Parties, then such Credit Party shall promptly, but in no event later than thirty (30) days following the Lendersacquisition of such Material Real Estate Asset, take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Sections 3.1(e), 3.1(f), 3.1(g) and 3.1(h) with respect to each such Material Real Estate Asset that Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority Lien on such Material Real Estate Assets (or if a Lien on any such Capital StockReal Estate Asset cannot be provided, (ii) take all actions necessary or advisable to cause such a First Priority perfected Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such on the Capital Stock to of the Administrative Agent together with undated stock powers executed Subsidiary that owns a direct interest in blank therefor, and (iii) such Real Estate Asset; provided that if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingsuch Subsidiary is a Foreign Subsidiary, the Borrower Domestic Subsidiary owning such Foreign Subsidiary (directly or through other Foreign Subsidiaries) shall not be required to grant to the Administrative Agent a First Priority perfected Lien upon on the Capital Stock of any Immaterial such directly-owned Foreign Subsidiary.
, which Lien shall be limited to (bA) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary 66% of the Borrower, promptly (and in any event within 30 days after voting Capital Stock of such Person becomes a Subsidiary): (i) cause such new Foreign Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (iiB) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary 100% of the Borrower non-voting Capital Stock of such Subsidiary), in each case, subject to Permitted Liens; provided that neither Parent nor any other Credit Party shall be required to execute a Subsidiary Guarantee provide or Subsidiary Pledge Agreementcause to be provided such additional Collateral (or Guarantees pursuant to Section 5.8) if (i) at the time of acquisition of such Material Real Estate Asset or Capital Stock, and no more than 65% the ratio of (A) the aggregate Value of all Collateral securing the Secured Obligations (determined as of the Capital Stock most recent Fiscal Quarter or Fiscal Year for which financial statements are available) to (B) the aggregate Revolving Commitments of all Lenders is at least 4.00 to 1:00 or equity interests in (ii) any Foreign Subsidiary of the Borrower existing Contractual Obligations assumed or entered into by Parent or any of its Subsidiaries if more than 65% of such Subsidiary to effectuate or reasonably facilitate the assets acquisition of such Subsidiary are securities of foreign companies Material Real Estate Assets (such determination including Contractual Obligations governing non-Wholly Owned Subsidiaries or Joint Ventures and Indebtedness permitted to be made on incurred pursuant to Section 6.1) prohibits the basis granting of fair market value), shall be required to be pledged hereundersuch Lien.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (General Growth Properties, Inc.), Credit and Guaranty Agreement (New GGP, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary property acquired after the Original Closing Date by any Loan Party (other than (1) any property described in paragraph (b) of this Section 6.14 and (2) any property excluded from the Borrower or any of its Subsidiaries that is intended obligation to be made subject to a Lien pursuant to the Lien created by any Security Documents) as to which the Administrative Agent and the Security Agents, as the case may be, for the benefit of the Pledge Agreements but which is Secured Parties, does not so subjecthave a perfected first priority Lien, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent and the Security Agents, as the case may be, such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem and/or such Security Agent reasonably deems necessary or advisable to grant to the Administrative AgentAgent and the Security Agents, as the case may be, for the benefit of the LendersSecured Parties, a Lien on security interest in such Capital Stock, property and (ii) take all actions reasonably necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent and the Security Agents, as the case may be, for the benefit of the Secured Parties, a Lien upon perfected first priority security interest in such property (subject to Liens permitted under Section 7.01), including the Capital Stock filing of any Immaterial Subsidiaryfilings with respect to IP Rights, UCC financing statements, and other filings and in such jurisdictions as may be required by the Pledge and Security Agreement (US), other Security Documents or by law or as may be requested by the Administrative Agent and/or a Security Agent.
(b) With respect to any fee interest in any real property having a value (together with improvements thereof) of at least $5,000,000 acquired after the Closing Date by any Loan Party (or owned by any Person that, subsequent to at the Original Closing Date, time it becomes a direct or indirect Subsidiary of the BorrowerLoan Party), promptly (and in any event within 30 60 days after the date of acquisition of such real property or the date such Person becomes a Subsidiary): Loan Party, unless a longer period is granted by Administrative Agent in its sole discretion, (i) cause execute and deliver a Mortgage, in favor of the Administrative Agent for the benefit of the Secured Parties, covering such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and real property, (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters all applicable information, documentation and certifications described in clause (i) immediately preceding, which opinions shall be in form and substanceAnnex B of the Closing Checklist with respect to such real property, and from counsel, reasonably satisfactory (iii) deliver to the Administrative Agent. Notwithstanding Agent a certificate of a Responsible Officer of Borrower, affirming the foregoingrepresentations contained in Section 5.08 with respect to such real property, no Immaterial Subsidiary or Foreign Subsidiary except that all references to the “Closing Date” contained in Section 5.08 shall instead be construed to refer to the date of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets delivery of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereundercertificate.
Appears in 2 contracts
Sources: Credit Agreement (SunEdison Semiconductor LTD), Credit Agreement (SunEdison Semiconductor LTD)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary Property acquired after the Original Closing Date by the Borrower or any of its Subsidiaries Loan Party that is intended to be subject to the Lien created by any of the Pledge Agreements Collateral Documents but which is not so subject, promptly (and and, in any event event, within 30 thirty (30) days after such creation or acquisition; provided that the acquisition thereof): Administrative Agent may extend such time period by (x) an additional thirty (30) days in its sole discretion and (y) an unlimited number of days thereafter with the consent of the Required Lenders) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall deem reasonably necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital StockProperty under applicable Legal Requirements (including applicable foreign Legal Requirements unless the Required Lenders shall determine in their sole discretion that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) subject to no Liens other than Permitted Liens and no senior Liens other than Permitted Prior Liens, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if extent requested by the Administrative Agent or the Required LendersAgent, deliver customary and reasonable opinions of counsel to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be Borrowers in form and substance, and from counsel, reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not and (iii) take all actions necessary to cause such Lien to be required to grant duly perfected to the Administrative Agent a Lien upon extent required by such Collateral Documents in accordance with all applicable Legal Requirements, including the Capital Stock filing of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and financing statements in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if jurisdictions as may be reasonably requested by the Administrative Agent or Agent. Subject to the Required Lenderslimitations set forth herein and in the other Loan Documents, the Borrowers and the other Loan Parties shall otherwise take such actions and execute and/or deliver to the Administrative Agent legal opinions relating such documents as the Administrative Agent shall reasonably require to confirm the matters described validity, perfection and priority of the Lien of the Collateral Documents against such after‑acquired Properties, all in clause (i) immediately precedingform, which opinions shall be in form content and substance, and from counsel, scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Turning Point Brands, Inc.), Second Lien Credit Agreement (Turning Point Brands, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary assets (or any newly issued Capital Stock of any existing Subsidiary interest therein) acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Security Agreements but which is are not so subject, subject promptly (and in any event within 30 60 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Security Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets (or such interest therein), (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements and the recording of leasehold mortgages in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding , and (iv) if requested by the foregoingAgent, the Borrower shall not be required to grant deliver to the Administrative Agent a Lien upon surveys, title insurance and flood insurance reasonably satisfactory to the Capital Stock of any Immaterial SubsidiaryAgent.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary domestic Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Agent: (i) execute and deliver to the Agent, for the benefit of the Lenders, a new pledge agreement, or such amendments to the Guarantee and Collateral Agreement as the Agent shall deem necessary or advisable to grant to the Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and Collateral Agreement or to a new security agreement in each case pursuant to an annex to the Guarantee and Collateral Agreement which is in form and substance satisfactory to the Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by the Guarantee and Collateral Agreement or such security agreement, 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 requested by the Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(c) With respect to any Person that subsequent to the foregoingClosing Date becomes a foreign Subsidiary (other than a foreign Subsidiary owned by another foreign Subsidiary), no Immaterial promptly upon the request of the Agent: (i) execute and deliver to the Agent a foreign stock pledge agreement relating to the pledge of the shares of such foreign Subsidiary or Foreign Subsidiary executed and delivered by a duly authorized officer of the Borrower shall be required or its domestic Subsidiary, as the case may be, with a counterpart or a conformed copy for each Lender, (ii) deliver to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than the Agent the certificate[s] representing 65% of the Capital Stock of or equity interests such foreign Subsidiary, together with, if required by such foreign stock pledge agreement, undated stock powers for each such certificate executed in any Foreign Subsidiary blank by a duly authorized officer of the Borrower or any of its Subsidiaries if more than 65% pledgor thereof, (iii) complete such other actions as are necessary or, in the opinion of the assets Agent, desirable to perfect the Liens created by such foreign stock pledge agreement and (iv) cause the delivery of the executed legal opinion of special foreign counsel with respect to such Subsidiary are securities of foreign companies (such determination stock pledge agreement, in form and substance reasonably satisfactory to be made on the basis of fair market value), shall be required to be pledged hereunderAgent.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Aftermarket Technology Corp), Credit Agreement (Aftermarket Technology Corp)
Additional Collateral. (a) With respect The Borrower shall, and shall --------------------- cause each of its Collateral Subsidiaries to, cause the Administrative Agent, on behalf of the Secured Parties, to any Capital Stock have at all times a first priority perfected security interest (subject only to Liens and encumbrances permitted under Section 7.2.3) in all of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date property (real and personal) owned from time to ------------- time by the Borrower or any such Collateral Subsidiary to the extent the same constitutes or would constitute "Collateral" under the Borrower Security Agreement, the Subsidiary Security Agreement or the Borrower Pledge Agreement. Without limiting the generality of the foregoing, the Borrower shall, and shall cause each of its Collateral Subsidiaries that is intended to, execute, deliver and/or file (as applicable) or cause to be subject executed, delivered and/or filed (as applicable), the pledge agreement(s), the security agreement(s), Uniform Commercial Code (Form UCC-1) financing statements, Uniform Commercial Code (Form UCC-3) termination statements, and other documentation necessary to the Lien created by any of the Pledge Agreements but which is not so subjectgrant and perfect such security interest, promptly (in each case in form and in any event within 30 days after the acquisition thereof): (i) execute and deliver substance satisfactory to the Administrative Agent together, in each case, with such amendments to opinions of legal counsel for the relevant Pledge Agreements or such other documents as the Administrative Agent Borrower (which shall deem necessary or advisable to grant be from counsel reasonably satisfactory to the Administrative Agent) relating thereto, which legal opinions shall be in form and substance reasonably satisfactory to the Administrative Agent.
(b) The Borrower shall (i) cause each Restricted Subsidiary which has assets (exclusive of assets owned by such Restricted Subsidiary on the Effective Date) and/or in which the Borrower or any Subsidiary has made Investments aggregating for all such assets and Investments (without duplication) $5,000,000 or more (valued at the benefit greater of book and fair market value) to promptly (x) execute a Subsidiary Security Agreement and (y) comply with the Lendersrequirements of clause (a) above, a Lien on such Capital Stock, and (ii) take cause Restricted Subsidiaries to promptly (x) execute ---------- a Subsidiary Security Agreement and (y) comply with the requirements of clause ------ (a) above so that the aggregate amount of all actions necessary assets (exclusive of assets owned --- by such Restricted Subsidiary on the Effective Date) owned by Restricted Subsidiaries and/or in which the Borrower or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering any Subsidiary has made Investments aggregating for all such original certificates evidencing such Capital Stock assets and Investments (without duplication) not subject to the Administrative Agent together with undated stock powers executed Subsidiary Security Agreement does not exceed $10,000,000 (valued at the greater of book and fair market value) in blank therefor, and the aggregate at any time (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters each Restricted Subsidiary described in the foregoing clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentbeing a ----------- ---- "Collateral Subsidiary"). Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.----------------------
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary Property acquired after the Original Closing Date by the Borrower or any of its Subsidiaries NATC Party that is intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is not so subject, promptly (and and, in any event event, within 30 thirty (30) days after such creation or acquisition; provided that the acquisition thereof): Administrative Agent may extend such time period by (x) an additional thirty (30) days in its sole discretion and (y) an unlimited number of days thereafter with the consent of the Required Lenders) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem reasonably necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital StockProperty under Applicable Law (and applicable foreign law unless the Required Lenders shall determine in their sole discretion that the cost of complying with such applicable foreign law is excessive in relation to the value of the security to be afforded thereby) subject to no Liens other than Permitted Liens and no senior Liens other than Permitted Prior Liens, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if extent requested by the Administrative Agent or the Required LendersAgent, deliver customary and reasonable opinions of counsel to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be Borrower in form and substance, and from counsel, reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not and (iii) take all actions necessary to cause such Lien to be required to grant duly perfected to the Administrative Agent a Lien upon extent required by such Security Documents in accordance with all applicable legal requirements, including the Capital Stock filing of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and financing statements in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if jurisdictions as may be reasonably requested by the Administrative Agent or Agent. Subject to the Required Lenderslimitations set forth herein and in the other Loan Documents, the Borrower and the other NATC Parties shall otherwise take such actions and execute and/or deliver to the Administrative Agent legal opinions relating such documents as the Administrative Agent shall reasonably require to confirm the matters described validity, perfection and priority of the Lien of the Security Documents against such after-acquired Properties, all in clause (i) immediately precedingform, which opinions shall be in form content and substance, and from counsel, scope reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (Turning Point Brands, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Extension Date by the Borrower or any of its Subsidiaries that is intended (other than any immaterial assets a security interest with respect to which cannot be subject to the Lien created perfected by any of the Pledge Agreements but which is not so subjectfiling UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to this Agreement or the relevant Pledge Agreements Security Document or such other documents as the Administrative Agent shall or the Required Lenders deem reasonably necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in such assets and (ii) take all actions necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersLenders with respect to any such assets acquired prior to the payment in full of the Obligations a perfected first priority security interest in such assets, a Lien on such Capital Stock, (ii) take all actions necessary or advisable subject to cause such Lien to be duly perfected in accordance with all applicable Requirements of LawLiens permitted by Section 6.2, including delivering all without limitation, the filing of UCC financing statements (or other filings or steps to perfect) in such original certificates evidencing such Capital Stock to jurisdictions as may be required by the appropriate Security Document or by law or as may be reasonably requested by the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if reasonably requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in the preceding clauses (i) and (ii) immediately preceding), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, entity which is or becomes a direct or indirect Subsidiary of the BorrowerBorrower or any MCC Guarantor after the Extension Date, promptly (and in any event within 30 days after such Person becomes a Subsidiary): upon the request of the Administrative Agent (i) execute and deliver to the Administrative Agent such agreements as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Stock and Stock Equivalents (provided, that with respect to foreign Subsidiaries (other than MCHI or any of its Subsidiaries) if the grant of such security interest would cause materially adverse tax consequences such security interest shall only extend to 65% of the issued and outstanding Stock and Stock Equivalents of first tier foreign Subsidiaries) of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, subject to Liens permitted by Section 6.2, (ii) deliver to the Administrative Agent the certificates representing such Stock and Stock Equivalents, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Collateral Agreement and the Subsidiary Guarantee if required, to execute an Intellectual Property Security Assignment and (iiB) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders at any time a guarantee on the terms of Section 9 hereof (including by executing and delivering an assumption agreement in the form of Exhibit I hereto) and a perfected first priority security interest in the collateral described in such Collateral Agreement or other guarantee and collateral arrangements with respect to such Subsidiary, including, without limitation, the filing of UCC financing statements in such jurisdictions as may be requested by the Administrative Agent, subject to Liens permitted by Section 6.2, and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause the preceding clauses (i), (ii) immediately precedingand (iii), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required .
(c) With respect to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests any fee interest in any Foreign Subsidiary real property having a value (together with improvements thereof) of at least $250,000 acquired after the Extension Date by any of the Borrower or any MCC Guarantor promptly (i) execute and deliver a first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders, covering such real property, (ii) if requested by the Administrative Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(d) With respect to any new Domestic Subsidiary of Terra, which is not a Subsidiary of the Borrower, created or acquired after the Extension Date promptly (i) execute and deliver to the Administrative Agent such amendments to this Agreement as the Administrative Agent deems necessary or advisable to cause such new Subsidiary to become a party to this Agreement as a Terra Guarantor (including by executing and delivering an assumption agreement in the form of Exhibit I hereto), (ii) deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of Exhibit B, with appropriate insertions and attachments, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(e) Promptly upon the reasonable request by the Administrative Agent, Borrower shall, and shall ensure that each of its Subsidiaries if more than 65% shall, take such action as the Administrative Agent may request (including the execution, amendment, delivery, filing and registration of any Loan Document or other document, certificate, agreement or instrument) in order to correct any material defect or error which may be discovered which impairs, or may fail to provide, the intended legality, effectiveness, accuracy, perfection or priority of any Loan Document.
(f) If at any time the consent of the assets joint venture party under the Shareholders Agreement referenced in the MCHI Guaranty is obtained to the pledge of the Stock or Stock Equivalents of MCHI, the Borrower shall within thirty days of such Subsidiary are securities of foreign companies consent take steps outlined in clause (b) above to grant the Administrative Agent and the Lenders a perfected first priority Lien on, and security interest in, such determination to be made on the basis of fair market value), shall be required to be pledged hereunderStock or Capital Equivalents.
Appears in 1 contract
Sources: Term Loan, Guarantee and Security Agreement (Terra Industries Inc)
Additional Collateral. (a) With respect to In the event any Capital Stock of Credit Party forms or acquires any Subsidiary after the Closing Date, such Credit Party shall promptly upon (but no later than 30 days after) such formation or acquisition cause (i) such newly created formed or acquired Subsidiary (each is a “New Subsidiary”) to execute and deliver to the Purchaser such documents as the Purchaser may then require (including, without limitation, a Guaranty and a joinder agreement causing such new Subsidiary to become party to the Security Agreement as a “Grantor”), (ii) provide updates to existing schedules and exhibits or new schedules or other disclosures as appropriate to modify representations, warranties, covenants, conditions and other provisions applicable to such New Subsidiary), (iii) a certificate attaching (x) the Organization Documents of such New Subsidiary, (y) resolutions of the board of directors (or similar governing body) of such New Subsidiary 29453927 approving and authorizing the execution, delivery and performance of the documents described in this Section 7.11 and the other Operative Documents and the transactions contemplated thereby, and (z) signature and incumbency schedule of such New Subsidiary, all certified as of the date of delivery of such certificate by a Responsible Officer of such New Subsidiary as being true and complete and in full force and effect without modification and (iv) such other instruments, documents, and certificates reasonably required by the Purchaser in connection therewith.
(b) If any asset (other than real property, which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than US$5,000,000 is acquired by the Company or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date or owned by an entity at the Borrower or any of its Subsidiaries time it becomes a Credit Party (in each case other than (x) assets constituting Collateral under the Security Agreement that is intended to be become subject to the Lien created by any of the Pledge Agreements but which Security Agreement upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Purchaser pursuant to any Operative Document), the Company will (i) as promptly as practicable notify the Purchaser thereof and (ii) take or cause the Credit Parties to take such actions as shall be reasonably requested by the Purchaser to grant and perfect such Liens, all at the expense of the Credit Parties.
(c) The Company shall promptly notify the Purchaser of the acquisition of and grant and cause each of the Credit Parties to grant to the Purchaser security interests and Mortgages in such Owned Real Property and Material Leased Real Property of the Company or any such Credit Parties as are not covered by the Mortgages previously delivered and recorded pursuant to documentation substantially in the form of the Mortgages or in such other form as is not so subjectreasonably satisfactory to the Purchaser (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens at the time of perfection thereof, record or file, and cause each such Credit Party to record or file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Purchaser required to be granted pursuant to the Additional Mortgages and pay, and cause each such Credit Party to pay, in full, all Taxes, fees and other charges payable in connection therewith. Unless otherwise waived by the Purchaser, with respect to each such Additional Mortgage, the Company shall deliver to the Purchaser contemporaneously therewith a title insurance policy, flood determination and evidence of flood insurance, if required by law, legal opinion, FIRREA appraisal (if required by law) and a survey and otherwise comply with the requirements of the Operative Documents applicable to Mortgages and Mortgaged Property.
(d) The Company shall furnish to the Purchaser promptly (and in any event within 30 thirty (30) days after such change) written notice of any change (A) in any Credit Party’s corporate or organization name, (B) in any Credit Party’s identity or organizational structure, (C) in any Credit Party’s organizational identification number, or (D) in any Credit Party’s jurisdiction of organization; provided that the acquisition thereof): Company shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or otherwise that are required in order for the Purchaser to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral with the same priority as prior to such change (i) execute and deliver it being understood that, 29453927 subject to the Administrative Agent such amendments foregoing, any Credit Party may change the name under which it conducts its business or its corporate name, trade name, trademarks, brand name or other public identifiers).
(e) Not later than thirty (30) days after any new deposit account or securities account is opened by any Credit Party (excluding any accounts used solely to the relevant Pledge Agreements fund payroll or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lendersemployee benefits), deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent Purchaser a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With Control Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after each such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderaccount.
Appears in 1 contract
Sources: Debenture Purchase Agreement (Red White & Bloom Brands Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created assets acquired on or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Restatement Effective Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than any assets described in paragraph (b) or (c) of this subsection and assets that, in the judgment of the Administrative Agent are immaterial or a Lien on which cannot be perfected by filing UCC-1 financing statements or their foreign equivalents), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be reasonably requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, on or subsequent to the Original Closing Restatement Effective Date, becomes a direct or indirect Subsidiary an active Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Administrative Agent: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the Borrower Stock Pledge Agreement as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary (unless such Subsidiary is a foreign Subsidiary in which case, 66% of the Capital Stock of such foreign subsidiary) which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary other than the Receivables Sub (A) to become a party to the Subsidiary Pledge Agreement Guarantee and the Subsidiary Guarantee Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by the Security Agreement 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 and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) in the case of each such Wholly Owned Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is an Unrestricted Subsidiary, a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to become a “Subsidiary Guarantor” and a “Grantor” under the Guarantee and Collateral Agreement and, after the occurrence of the Ratings Event, each other relevant Security Document, (ii) cause the Capital Stock of such Wholly Owned Subsidiary (unless it is an Unrestricted Subsidiary) to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or a Subsidiary thereof), no Capital Stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Subsidiary Guarantor, and then the amount of voting stock of such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to 65% of the outstanding shares of voting stock of such Subsidiary, (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge, (C) if the pledge of the Capital Stock of any such Wholly Owned Subsidiary would result in a violation of any laws, regulations or orders of any Governmental Authority, no shares of the Capital Stock of such Subsidiary shall be pledged, (D) no Capital Stock of SPX International GmbH, a cooperative association established under the laws of Germany, shall be pledged, (E) neither the Parent Borrower nor any Subsidiary Guarantor shall be required to pledge any Capital Stock of any newly created Ballantyne Holding Company, and, for the avoidance of doubt, none of Ballantyne Company, SPX ▇▇▇▇▇ Luxembourg S.à ▇.▇. or acquired Subsidiary or any newly issued SPX ▇▇▇▇▇ UK Limited shall be required to be a “Grantor” under the Guarantee and Collateral Agreement, (F) Capital Stock shall not be required to be pledged to the extent that the Guarantee and Collateral Agreement expressly provides that such Capital Stock is not required to be pledged, and (G) no Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended not a Material Subsidiary shall be required to be subject pledged (notwithstanding anything set forth in the Guarantee and Collateral Agreement) so long as the aggregate assets of all such Subsidiaries whose Capital Stock is not pledged as Collateral pursuant to this clause (G) does not exceed $40,000,000 when taken together for all such Subsidiaries (excluding the Lien created by assets of any Subsidiary the Capital Stock of the Pledge Agreements but which is not so subjectrequired to be pledged pursuant to clauses (A) — (F)) on an aggregate basis and (iii) except in the case of an Unrestricted Subsidiary, promptly a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in any event within 30 the relevant property of such Subsidiary; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(b) Within 60 days after (or such longer period as is reasonably acceptable to the acquisition thereof): Administrative Agent), following the first date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is less than “Ba2” (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is less than “BB” (or not rated by S&P) (such date, the “Ratings Event”), the Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents, in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all property of such Person (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding (A) all other real property (whether owned or leased) and leaseholds, (B) Capital Stock not required to be pledged pursuant to Section 5.11(a), (C) assets for which the pledge thereof or grant, or perfection, of a Lien on such Capital Stockthereon would result in a default, breach or other violation or right of termination under then existing Contractual Obligations or laws, regulations or orders of any Governmental Authority, (D) any personal property (including titled vehicles) in respect of which perfection of a Lien is not governed by the UCC or, in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office, (E) any intellectual property to the extent a security interest therein is not perfected by filing a UCC financing statement or, in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office, (F) any intellectual property if the grant, or perfection, of a security interest therein shall constitute or result in (i) the abandonment, invalidation or rendering unenforceable of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein, (ii) take all actions necessary the breach or advisable termination pursuant to cause the terms of, or a default under, any contract or agreement related to such intellectual property or (iii) the violation of any applicable law, (G) any general intangible if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such General Intangible, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder or (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (H) any lease, license, contract, property rights or agreement to which any Grantor (as defined in the Guarantee and Collateral Agreement) is a party or any of its rights or interests thereunder if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such lease, license, contract, property rights or agreement, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder, (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained, (iv) shall constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein or (v) shall constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (I) any Exempt Deposit Accounts and (J) those other assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) that is not already subject to a perfected first priority Lien to be duly perfected (except as permitted by Section 6.3) in accordance with all applicable Requirements favor of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforand (ii) take, and (iii) if cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Required LendersParent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) If, deliver as of any Collateral Date following the Ratings Event, any property of the Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any Security Document or any Restricted Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) is not already subject to a perfected first priority Lien (except to the same extent as not required pursuant to Section 5.11(b) or as permitted by Section 6.3) in favor of the Administrative Agent, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(c) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequences to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(d) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, prior to the occurrence of the Ratings Event, no property other than Capital Stock (subject to the exceptions specified in Section 5.11(a)) shall be required to become Collateral.
(e) Promptly, and in any event within 60 days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first date after the Release Date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is less than “Baa3” (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is less than “BBB-” (or not rated by S&P), the Parent Borrower shall (i) execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoing, the Parent Borrower and each Subsidiary Guarantor shall not be required to grant to the Administrative Agent Agent, for the benefit of the Lenders, a security interest in all property (and types of property) of such Person that constituted Collateral under the Guarantee and Collateral Agreement as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock not required to be pledged pursuant to Section 5.11(a) or other assets not required to be subjected to a Lien upon the Capital Stock of any Immaterial Subsidiary.
(bpursuant to Section 5.11(b)) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if take, and cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties.
(f) Notwithstanding anything to the contrary in this Section 5.11 or the Required Lendersany other Loan Document, deliver to the Administrative Agent legal opinions and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any purported Liens on): (i) the assets transferred to a Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction”) transferred, or in respect of which security interests are granted, pursuant to a Qualified Receivables Transaction, (iii) if the documentation relating to the matters described in clause (i) immediately precedingReceivables sale, factoring or securitization to which opinions shall be in form and substancesuch Receivables Entity is a party expressly prohibits such a Lien, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock or debt (whether or not represented by promissory notes) of or equity interests in any Foreign Subsidiary of issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries if more than 65% Restricted Subsidiaries, in each case in connection with a Qualified Receivables Transaction permitted by Section 6.6(c) and (iv) Capital Stock not required to be pledged pursuant to Section 5.11(a), (b) or (c). Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, neither the Parent Borrower nor any of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), Guarantors shall be required to take any action to perfect the security interest of the Administrative Agent in the Collateral other than (i) filing UCC financing statements, (ii) delivering Capital Stock required to be pledged hereunderpursuant to Sections 5.11(a), (b) and (c), (iii) executing, delivering, filing and recording mortgages with respect to owned real property in which a security interest is required to be granted pursuant to this Section 5.11 and (iv) executing, delivering, filing and recording notices of grants of security interest with the United States Patent Office and/or United States Copyright Office.
(g) Notwithstanding anything herein to the contrary, no Foreign Subsidiary (or any Subsidiary thereof) shall, or shall be deemed to, guarantee any Borrowing by the Parent Borrower, and no assets of any Foreign Subsidiary (or Subsidiary thereof) shall be given as security for such Borrowing. This provision is meant to prevent any inclusions pursuant to Section 956 of the Code and shall be interpreted in accordance therewith.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Additional Collateral. (a) With respect to any Capital Stock of any newly new Subsidiary (other than a Foreign Subsidiary or a Foreign Subsidiary Holding Company) created or acquired Subsidiary or any newly issued Capital Stock after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary acquired after that ceases to be a Foreign Subsidiary or a Foreign Subsidiary Holding Company or that becomes a Subsidiary described in clause (a) of the Original Closing Date definition of "Subsidiary Guarantor"), by the Borrower Company or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectSubsidiary Guarantor (other than as set forth in subsections 6.10(b) and (c)), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Guarantee and Pledge Agreements or such other documents Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on perfected first priority security interest in the Capital Stock of such new Subsidiary which is owned by the Company or any Subsidiary Guarantor, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary Guarantor, as the case may be, (iiiii) if 80% or more of the Equity Interests of such new Subsidiary are owned, directly or indirectly (other than indirectly through a Foreign Subsidiary) by the Company or any Subsidiary Guarantor, cause such new Subsidiary (A) to become a party to the Guarantee and Pledge Agreement and (B) to take all such actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock grant to the Administrative Agent together for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Pledge Agreement with undated stock powers executed respect to such new Subsidiary, including, without limitation, the filing of Uniform Commercial Code financing statements in blank thereforsuch jurisdictions as may be required by the Guarantee and Pledge Agreement or by law or as may be requested by the Administrative Agent, and (iiiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in clauses the form attached to the Guarantee and Pledge Agreement (or otherwise in form and substance reasonably satisfactory to the Administrative Agent).
(b) With respect to any new Foreign Subsidiary or Foreign Subsidiary Holding Company (other than an Excluded Issuer) created or acquired after the Closing Date by the Company or any Subsidiary Guarantor, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Pledge Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such new Foreign Subsidiary which is owned by the Company or any Subsidiary Guarantor (provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Subsidiary be required to be so pledged), (ii) immediately precedingdeliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary Guarantor, as the case may be, and take such other action as may be necessary or, in the reasonable opinion of the Administrative Agent, desirable under applicable law to perfect the Lien of the Administrative Agent thereon, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in the form attached to the Guarantee and Pledge Agreement (or otherwise in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent).
(c) With respect to any new Subsidiary created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that becomes a Subsidiary described in clause (a) of the definition of "Canadian Subsidiary Guarantor") by the Canadian Borrower or any Canadian Subsidiary Guarantor (other than as set forth in subsection 6.10(d)), promptly (i) execute and deliver to the Administrative Agent such amendments to the Canadian Guarantee and Pledge Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Tranche B Term Loan Lenders, a perfected first priority security interest in the Capital Stock of such new Subsidiary which is owned by the Canadian Borrower or any Canadian Subsidiary Guarantor, (ii) if 80% or more of the Equity Interests of such new Subsidiary are owned by the Canadian Borrower or any Canadian Subsidiary Guarantor, cause such new Subsidiary (A) to become a party to the Canadian Guarantee and Pledge Agreement, (B) to comply with the terms and provisions of the Canadian Guarantee and Pledge Agreement with respect to the registration of shares of such Capital Stock and the delivery to the Administrative Agent of certificates representing such Capital Stock, and (C) to take such other actions as may be necessary or advisable to grant to the Administrative Agent for the benefit of the Tranche B Term Loan Lenders a perfected first priority security interest in the Collateral described in the Canadian Guarantee and Pledge Agreement with respect to such new Subsidiary, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in the form attached to the Canadian Guarantee and Pledge Agreement (or otherwise in form and substance reasonably satisfactory to the Administrative Agent).
(d) With respect to any new Capital Stock created or acquired after the Closing Date by the Company or any of its Subsidiaries (other than a Foreign Subsidiary or a Foreign Subsidiary Holding Company) in connection with a transaction described in the last sentence of subsection 7.6, if the creation or acquisition of such Capital Stock is a Restricted Investment, promptly (i) execute and deliver to the Administrative Agent such amendments to the Guarantee and Pledge Agreement as the Administrative Agent deems necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in such Capital Stock (provided that in no event shall more than 65% of the total outstanding Capital Stock of any new Subsidiary be required to be so pledged if such Subsidiary
is a Foreign Subsidiary or a Foreign Subsidiary Holding Company), (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to perfect the Lien of the Administrative Agent thereon, and (iii) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (Gentek Inc)
Additional Collateral. (a) With Subject to subsection 7.9(e), with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower Company or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (but, in any event, excluding (x) any assets described in paragraph (b) or (c) of this subsection, (y) immaterial assets and (z) Receivables Facility Assets), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, and (ii) take all actions necessary or advisable to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing jurisdictions as may be reasonably requested by the Administrative Agent.
(b) With respect to any Person that is or becomes a Subsidiary (other than (y) any Foreign Subsidiary or (z) any Receivables SPV) that has material assets, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the relevant Pledge Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Company or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank thereforby a duly authorized officer of the Company or such Subsidiary, as the case may be, and (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Guarantee and the Subsidiary Security Agreement or such comparable documentation which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable to cause the Lien created by the Subsidiary Security Agreement to be duly perfected to the extent required by such agreement 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 is or becomes a Foreign Subsidiary and that has material assets, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent a new pledge agreement or such amendments to the relevant Pledge Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Company or any of its Subsidiaries (provided that in no event shall more than 65% of the Capital Stock of any such Foreign Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Company or such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock, and if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(d) Within 10 days of the foregoingClosing Date, the Borrower Administrative Agent shall not have received (i) fully executed counterparts of deeds of trust, leasehold deeds of trust, mortgages, leasehold mortgages and similar documents in each case in form and substance reasonably satisfactory to the Administrative Agent and substantially in the form of Exhibit M (each a "MORTGAGE" and collectively, the "MORTGAGES") covering all the Mortgaged Properties, and arrangements reasonably satisfactory to the Administrative Agent shall be in place to provide that counterparts of such Mortgages shall be promptly recorded upon execution in all places to the extent necessary or desirable, in the reasonable judgment of the Administrative Agent, effectively to create a valid and enforceable first priority Lien, subject only to Permitted Liens, on each Mortgaged Property in favor of the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Lenders, (ii) a lender's title insurance policy, paid for by the Company, issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Administrative Agent, in form and substance reasonably acceptable to the Administrative Agent, insuring each Mortgage as a first lien on the relevant Mortgaged Property and subject only to Liens expressly agreed to by the Administrative Agent and (iii) such other documents (including without limitation, current ALTA/ASCM surveys of any parcel of Real Property made in accordance with ALTA/ASCM standards, including Table A, Items Nos. 1-4 and 6-13) as are reasonably required by the Administrative Agent.
(e) Upon the request of the Administrative Agent, the Company will, and will cause its Domestic Subsidiaries to, promptly grant to the Administrative Agent a Lien upon Agent, within 60 days of such request, security interests and mortgages (an "ADDITIONAL MORTGAGE") in such owned Real Property of the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person Company and its Domestic Subsidiaries as are acquired after the Closing Date by the Company or such Subsidiary and that, subsequent to together with any improvements thereon, individually have a value of at least $5,000,000, as additional security for the Original Closing Date, becomes a direct or indirect Subsidiary obligations of the Borrower, promptly Credit Parties under any Credit Document (and in any event within 30 days after such Person becomes unless the subject property is already mortgaged to a Subsidiary): (i) cause such new Subsidiary to become a third party to the Subsidiary Pledge Agreement extent permitted by subsection 8.2). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Subsidiary Guarantee Administrative Agent and (ii) if shall constitute valid and enforceable perfected Liens subject only to Permitted Liens and such other Liens reasonably acceptable to the Administrative Agent. The Additional Mortgages or 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 required to be granted pursuant to the Additional Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. If requested by the Administrative Agent or the Required Lenders, deliver the Company shall provide a lender's title policy with respect to each such Additional Mortgage conforming to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary requirements of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valuesubsection 7.9(d), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With Subject to the terms of the Reimbursement Agreement, with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Effective Date by the Borrower or any of its Subsidiaries Subsidiary Guarantor that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than any assets described in subsection 7.10 or paragraph (b), (c) or (d) of this subsection), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Agent a Lien on such Capital Stockassets, (ii) take all actions reasonably deemed necessary or advisable by the Administrative Agent to cause such Lien to be duly perfected (to the extent contemplated therein and in the other Loan Documents) in accordance with all applicable Requirements of Law, including delivering all including, without limitation the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together (it being agreed that no action shall be required pursuant to this clause (ii) to perfect a Lien (1) in assets that would not constitute UCC Filing Collateral or (2) in assets constituting UCC Filing Collateral if such perfection relates to assets constituting UCC Filing Collateral with undated stock powers executed in blank thereforan aggregate book value of less than $1,000,000), and (iii) with respect to assets constituting UCC Filing Collateral with a book value in excess of $1,000,000 that are perfected under the laws of any jurisdiction, if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Effective Date, becomes a direct Domestic Subsidiary (other than a Credit Card Subsidiary) promptly: (i) execute and deliver to the Administrative Agent a new pledge agreement or indirect such amendments to the relevant Pledge Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent a Lien on the Capital Stock of such Domestic Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrowerpledgor thereof, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (iiii) cause such new Domestic Subsidiary (A) to become a party to the Subsidiary Pledge Agreement Subsidiaries Guarantee and the Subsidiary Guarantee Subsidiaries Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (iiB) to take all actions reasonably deemed necessary or advisable by the Administrative Agent to cause the Lien created by the Subsidiaries Security Agreement to be duly perfected (to the extent contemplated therein and in the other Loan Documents) in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by the Administrative Agent (it being agreed that no action shall be required pursuant to this clause (iii) to perfect a Lien in assets that would not constitute UCC Filing Collateral or in assets constituting UCC Filing Collateral if such perfection relates to assets constituting UCC Filing Collateral with an aggregate book value of less than $1,000,000) and (iv) with respect to assets of any such Domestic Subsidiary with a book value in excess of $l,000,000 that are perfected under the laws of any jurisdiction, if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(c) With respect to any Person that, subsequent to the foregoingEffective Date, no Immaterial Subsidiary or becomes a Foreign Subsidiary with a net worth in excess of $l,000,000 or Inventory with a book value in excess of $1,000,000, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent a new pledge agreement or such amendments to the relevant Pledge Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests any such Subsidiary be required to be so pledged) and (ii) deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in any Foreign Subsidiary blank by a duly authorized officer of the Borrower or any of its Subsidiaries if more than 65% such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the assets jurisdiction of organization of such Foreign Subsidiary are securities as may be necessary or advisable to perfect such Lien on such Capital Stock.
(d) If the Borrower or any Subsidiary Guarantor shall acquire any Investment Securities (other than Investment Securities of foreign companies any issuer aggregating less than $1,000,000) such Loan Party shall deliver certificates representing such Investment Securities to the Administrative Agent or its agent or custodian (or otherwise "transfer" such determination Investment Security (within the meaning of the applicable UCC) to be made on the basis of fair market value), Administrative Agent or its agent or custodian (or take such other action as shall be required to perfect the security interest of the Collateral in accordance with the applicable UCC)), together with, when necessary or appropriate, undated powers as provided in Section 2(b) of the Pledge Agreement, to be pledged hereunderheld by the Administrative Agent (or its agent or custodian) as Pledged Securities, subject to the terms of the Pledge Agreement, as collateral security for the Secured Obligations.
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Restatement Effective Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) or (c) of this subsection and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Restatement Effective Date, becomes a direct or indirect Subsidiary Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Agent: (i) execute and deliver to the Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the applicable Stock Pledge Agreement as the Agent shall deem necessary or advisable to grant to the Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to a Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Subsidiary Pledge Agreement and the Subsidiary Guarantee Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by such Security Agreement 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 requested by the Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. .
(c) Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary constituting a "controlled foreign corporation," as defined in Section 957 of the Borrower Code, shall be required to execute deliver any guaranty of the Loan Obligations or grant a security interest in any of its property to secure any such guaranty, and neither Borrower nor any of its Subsidiaries shall be required to pledge more than sixty-five percent (65%) (or other applicable greater percentage) of the voting equity securities of any such Foreign Subsidiary Guarantee as security for the Loan Obligations, to the extent, in any such case, such guaranty or granting, or a pledge of additional equity securities, would result in material and adverse tax consequences to Borrower under Section 956 of the Code as determined by Agent in its good faith determination.
(d) Notwithstanding anything to the contrary in this subsection 5.10, paragraphs (a) and (b) shall not apply to any property or Domestic Subsidiary created or acquired after the Restatement Effective Date, as applicable, to which the Agent has determined in its sole discretion that the collateral value thereof is insufficient to justify the difficulty, time and/or expense of obtaining a perfected security interest therein.
(e) If the Borrower or any Subsidiary creates any initial or additional Lien pursuant to subsection 6.3(l) upon any of its property, assets or revenues to secure Indebtedness incurred under subsection 6.2(i), such Borrower or Subsidiary Pledge Agreementshall simultaneously (i) grant a first priority Lien on such property, assets or revenues to secure the Loan Obligations and no more than 65% (ii) shall enter into an intercreditor and subordination agreement with the to-be-holders of such Indebtedness and the Agent, for the benefit of the Capital Stock Lenders, in form and substance satisfactory to the Agent. If any Subsidiary that is not a Guarantor guarantees the payment of or equity interests in any Foreign Subsidiary Indebtedness incurred under subsection 6.2(i) of the Borrower or any of its Subsidiaries if more than 65% of the assets of Subsidiary, then such Subsidiary are securities of foreign companies (such determination shall simultaneously become a party to be made on the basis of fair market value), shall be required to be pledged hereundera Security Agreement and a Guarantor.
Appears in 1 contract
Additional Collateral. If property of a type constituting Collateral is acquired by the Company or a Guarantor that is not automatically subject to a perfected security interest under the Security Documents or a Restricted Subsidiary becomes a Guarantor, then the Company and such Guarantor, as applicable, will, as soon as reasonably practicable after such property’s acquisition or such Subsidiary becoming a Guarantor:
(a) With respect to any Capital Stock grant Liens on such property (or, in the case of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any a new Guarantor, all of its Subsidiaries assets constituting the type that is intended to be subject to the Lien created by any Collateral) in favor of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Noteholder Collateral Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersHolders of Notes (and, to the extent such grant would require the execution and delivery of a Security Document, the Company or such Guarantor shall execute and deliver such Security Document on substantially the same terms as the Security Documents covering Collateral owned by the Company or a Guarantor on the Issue Date including, with respect to personal property, execution of a supplement to the Security Agreement and, with respect to fee-owned real property having a Fair Market Value in excess of $5.0 million, execution of a new mortgage or an amendment to an existing mortgage);
(b) deliver certain certificates in respect thereof as required by the Security Documents and, in the case of real property located in the United States, a title insurance policy relating to any mortgage therein; and
(c) to the extent required by the Security Documents, cause the Lien on granted in such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien Security Document to be duly perfected to the same extent and with the same priority as the Liens (subject to Permitted Liens) granted on Collateral owned by the Company or a Guarantor on the Issue Date are perfected (including, with respect to Equity Interests of a Subsidiary or intercompany debt, perfection by control to the extent required by the applicable Security Document and, to the extent applicable to assets and property not constituting Excluded Property, taking such action as may be required under the terms of the Security Document to be taken under the laws of any applicable foreign jurisdiction to create, perfect and maintain the requisite priority of such Lien under such laws, including, to the extent so required, entering into security documentation governed by foreign law). In addition, to the extent any disposition of assets or property in an Asset Sale is of Collateral, any non-cash consideration received by the Company or any Restricted Subsidiary will be pledged as Collateral under the Security Documents as soon as reasonably practicable after such sale, in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed requirements set forth in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentSecurity Documents. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock Board of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Directors of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement Company and the Subsidiary Guarantee and (ii) if requested by Guarantors shall have discretion to determine not to obtain or perfect a security interest in non-U.S. assets or property under the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters circumstances described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Section 3.7 of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Security Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject Person that, -------------------------- subsequent to the Lien created by any of the Pledge Agreements but which is not so subjectClosing Date, becomes a Domestic Subsidiary, promptly (and and, in any event event, within 30 days ten Business Days after the acquisition thereofsuch Person becomes a Domestic Subsidiary): (i) execute and deliver to the Administrative Agent Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the relevant Pledge Agreements or such other documents Security Document as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iiiii) cause such new Subsidiary (A) to become a party to the Initial Collateral Agreement or the Subsequent Collateral Agreement, as applicable, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable to cause such the Lien created by the Initial Collateral Agreement or the Subsequent Collateral Agreement, as applicable, to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank therefor, and (iiiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i), (ii) and (iiiii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct Foreign Subsidiary and which has Capital Stock which is owned directly by the Borrower or indirect Subsidiary of the Borrowera Domestic Subsidiary, promptly (and and, in any event event, within 30 days after following the date upon which such Person becomes a Foreign Subsidiary): (i) cause such new Subsidiary to become a party execute and deliver to the Subsidiary Administrative Agent a new Foreign Pledge Agreement or such amendments to the relevant Foreign Pledge Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged if the pledge of more than such amount would be reasonably likely to cause adverse tax consequences), (ii) to the extent reasonably deemed advisable by the Administrative Agent, deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary Guarantee as may be necessary or advisable to perfect such Lien on such Capital Stock and (iiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i) through (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(c) In furtherance of the foregoing provisions of this subsection 7.10, Premisys and each of its Subsidiaries shall, on the Merger Date, be deemed to be a Subsidiary of the Borrower and shall comply with the provisions of this subsection 7.10; provided that (i) it being understood that Premisys and each of its Subsidiaries shall, for purposes of this subsection 7.10 only, be deemed not to constitute a Subsidiary of the Borrower prior to the Merger Date and (ii) if the Borrower provides to the Administrative Agent a certificate of a Responsible Officer certifying that the Reorganization Date is anticipated in good faith to occur within 60 days following the Merger Date, then the Borrower need not comply with the provisions of clause (b) of this subsection 7.10 (or any similar requirement of any Security Document) until the earlier of the Reorganization Date or such 60th day following the Merger Date. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of pledge the Capital Stock of or equity interests in any Foreign Subsidiary of Premisys which is held by it pursuant to the Borrower or any of its Subsidiaries if more than 65% of Initial Collateral Agreement from and after the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderClosing Date.
Appears in 1 contract
Additional Collateral. If property of a type constituting Collateral is acquired by the Company or a Guarantor that is not automatically subject to a perfected security interest under the Security Documents or a Restricted Subsidiary becomes a Guarantor, then the Company and such Guarantor, as applicable, shall, as soon as reasonably practicable after such property’s acquisition or such Subsidiary becoming a Guarantor:
(a) With respect to any Capital Stock grant Liens on such property (or, in the case of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any a new Guarantor, all of its Subsidiaries assets constituting the type that is intended to be subject to the Lien created by any Collateral) in favor of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Noteholder Collateral Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersHolders of Notes (and, to the extent such grant would require the execution and delivery of a Security Document, the Company or such Guarantor shall execute and deliver such Security Document on substantially the same terms as the Security Documents covering Collateral owned by the Company or a Guarantor on the Issue Date including, with respect to personal property, execution of a supplement to the Security Agreement and, with respect to fee-owned real property having a Fair Market Value in excess of $5.0 million, execution of a new mortgage or an amendment to an existing mortgage);
(b) deliver certain certificates in respect thereof as required by the Security Documents and, in the case of real property located in the United States, a title insurance policy relating to any mortgage therein; and
(c) to the extent required by the Security Documents, cause the Lien on granted in such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien Security Document to be duly perfected to the same extent and with the same priority as the Liens (subject to Permitted Liens) granted on Collateral owned by the Company or a Guarantor on the Issue Date are perfected (including, with respect to Equity Interests of a Subsidiary or intercompany debt, perfection by control to the extent required by the applicable Security Document and, to the extent applicable to assets and property not constituting Excluded Property, taking such action as may be required under the terms of such Security Document to be taken under the laws of any applicable foreign jurisdiction to create, perfect and maintain the requisite priority of such Lien under such laws, including, to the extent so required, entering into security documentation governed by foreign law). In addition, to the extent any disposition of assets or property in an Asset Sale is of Collateral, any non-cash consideration received by the Company or any Restricted Subsidiary shall be pledged as Collateral under the Security Documents as soon as reasonably practicable after such sale, in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed requirements set forth in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentSecurity Documents. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock Board of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Directors of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement Company and the Subsidiary Guarantee and (ii) if requested by Guarantors shall have discretion to determine not to obtain or perfect a security interest in non-U.S. assets or property under the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters circumstances described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Section 3.7 of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Security Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created On or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after around the Original Closing Date by Second Amendment Effective Date, the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to Credit Parties will grant to the Administrative Agent, for the benefit of the Lenders, as further Collateral for the Obligations and the Hedge Obligations, a Lien on such Capital Stockperfected first priority lien and security interest, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock pursuant to the Administrative Agent together with undated stock powers terms of an Equity Interests Pledge and Security Agreement (the “Pledge Agreement”) executed contemporaneously herewith, in blank thereforthe following (collectively, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses “Additional Collateral”): (i) the “Pledged Interests” as that term is defined by the Pledge Agreement and (ii) immediately precedingall of the economic interests and rights to receive dividends, which opinions shall be distributions, or cash flow in form and substancerespect of the “Pledged Interests”, and from counsel, reasonably satisfactory to as that term is defined by the Administrative Agent. Notwithstanding the foregoing, Pledge Agreement; provided that the Borrower shall not be required to grant pledge any portion of such Equity Interests or other Additional Collateral to the Administrative Agent extent (and only to the extent) that such a Lien upon grant of a security interest is prohibited by, or under the Capital Stock terms thereof, may give rise to a default, breach, right of recoupment, buyout, repurchase, purchase option, right of first refusal or similar rights (whether effective with the pledge or any Immaterial related exercise of rights thereunder), claim, defense or remedy, or directly or indirectly results in the termination of or requires any consent not obtained under, the documents evidencing or securing third-party first mortgage indebtedness of such Subsidiary.
(b) With respect to any Person thatNo later than thirty (30) days after an Event of Default and a written request from the Agent therefor, subsequent the Borrower shall establish a segregated deposit account with the Agent, which shall be pledged to the Original Closing DateAgent pursuant to documentation reasonably acceptable to the Agent and shall execute such documents and take such action as the Agent shall reasonably require in order to perfect its security interest in such deposit account and funds on deposit therein, becomes a direct or indirect and thereafter the Borrower will cause all dividends, distributions, and excess cash flow (after payment of normal and ordinary expenses), in each case, that is distributed by any applicable Subsidiary with respect of the BorrowerAdditional Collateral, promptly (and in to be deposited therein upon receipt by any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions Person. While any Event of Default shall be in form existence, neither the Borrower nor any other party shall have the right of withdrawal with respect to such deposit account and substance, and from counsel, reasonably satisfactory the Agent may apply all funds on deposit therein to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary repayment of all outstanding Obligations.
g. 9.4 of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, Credit Agreement is hereby amended and no more than 65% of the Capital Stock of or equity interests restated in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.entirety as follows:
Appears in 1 contract
Sources: Credit Agreement (Wheeler Real Estate Investment Trust, Inc.)
Additional Collateral. (a) With respect to any Capital Stock Person (other than a Domestic Subsidiary formed for the sole purpose of any newly created holding the capital stock of one or acquired Subsidiary or any newly issued Capital Stock more of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject Company's Foreign Subsidiaries) that, subsequent to the Lien created by any Closing Date, becomes a Domestic Subsidiary which is a Material Subsidiary, promptly upon the request of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): Administrative Agent: (i) execute and deliver to the Administrative Agent Collateral Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the relevant existing Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Collateral Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Company or any of its Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Company or such Subsidiary, as the case may be, (iiiii) cause such new Subsidiary (A) to become a party to the Subsidiary Guaranty, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable to cause such the Lien created by the relevant Security Documents to be duly perfected in accordance with all applicable Requirements of LawLaw and (iv) if requested by the Administrative Agent, including delivering all such original certificates evidencing such Capital Stock deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any Person that, subsequent to the Closing Date, becomes a Foreign Subsidiary and which has Capital Stock which is owned directly by the Company or a Domestic Subsidiary which is a Material Subsidiary, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Collateral Agent a new Foreign Pledge Agreement or such amendments to the relevant Foreign Pledge Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned directly by the Company or any of its Domestic Subsidiaries (PROVIDED that in no event shall more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged if the pledge of more than such amount would be reasonably likely to cause adverse tax consequences), (ii) to the extent reasonably deemed advisable by the Administrative Agent, deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank thereforby a duly authorized officer of the Company or such Subsidiary, as the case may be, (iii) take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock and (iiiiv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and through (iiiii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Each Foreign Borrower hereby covenants and agrees that it shall not be required take any action or fail to grant to the Administrative Agent take any action which would constitute a Lien upon the Capital Stock Default or Event of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged Default hereunder.
Appears in 1 contract
Sources: Credit Agreement (Hexcel Corp /De/)
Additional Collateral. (a) With respect In the event that Borrower desires to any Capital Stock use proceeds of any newly created or acquired Subsidiary the Loans or any newly issued Capital Stock Letter of Credit to directly or indirectly acquire Real Estate or any existing interest therein, such Real Estate shall be required to become a Mortgaged Property as a condition thereto. No Real Estate shall be included as a Mortgaged Property unless and until the following conditions precedent shall have been satisfied:
(i) such Real Estate shall be Eligible Real Estate;
(ii) if such Real Estate is owned by a Wholly-Owned Subsidiary acquired after of the Original Closing Date by Borrower, said Wholly-Owned Subsidiary shall have executed a Joinder Agreement and satisfied the conditions of §5.4;
(iii) the Borrower or the Wholly-Owned Subsidiary which is the owner of the Real Estate shall have executed and delivered to the Agent all Guarantor Qualification Documents, all of which instruments, documents or agreements shall, to the extent required by this Agreement, be in form and substance reasonably satisfactory to the Agent; and
(iv) after giving effect to the inclusion of such Eligible Real Estate, each of the representations and warranties made by or on behalf of the Borrower or the Guarantors or any of their respective Subsidiaries contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connection with this Agreement shall be true in all material respects both as of the date as of which it was made and shall also be true as of the time of the addition of such Mortgaged Property with the same effect as if made at and as of that time, except to the extent of changes resulting from transactions permitted by the Loan Documents (it being understood and agreed that any representation or warranty which by its Subsidiaries terms is made as of a specified date shall be required to be true and correct only as of such specified date), and no Default or Event of Default shall have occurred and be continuing and the Agent shall have received a certificate of the Borrower to such effect. For the avoidance of doubt, the delivery by Borrower to Agent of the Guarantor Qualification Documents or the Eligible Real Estate Qualification Documents shall not modify any representation, warranty or covenant in this Agreement or the other Loan Documents.
(b) If such Real Estate is owned by a Wholly Owned Subsidiary of Borrower, then Borrower shall pledge to Agent 100% of the Equity Interests in the Wholly Owned Subsidiary owning or leasing the Real Estate pursuant to the Assignment of Interests and as provided in Schedule 5.3.
(c) Borrower shall on or before the date that is intended thirty (30) days following the date of acquisition of any Real Estate by Borrower or such Subsidiary which becomes a Mortgaged Property, cause to be subject executed and delivered to the Lien created by any Agent all Eligible Real Estate Qualification Documents, all of the Pledge Agreements but which is not so subjectwhich, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agentextent required by this Agreement, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably substance satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant deliver to Agent a Mortgage and Assignment of Leases and Rents with respect to the Administrative Agent a Lien upon Development Properties owned as of the Capital Stock of any Immaterial SubsidiaryClosing Date by GWL East H▇▇▇▇▇ LLC and Wu/LH 466 Bridge Port LLC as long as their Real Estate remains Development Properties.
(bd) With respect to any Person thatThe Mortgage and Assignment of Leases and Rents shall be effective upon the delivery thereof, subsequent to but shall not be recorded until the Original Closing Dateoccurrence of an Event of Default. Upon the occurrence of an Event of Default, becomes a direct or indirect Subsidiary the Agent may, and upon the direction of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver shall, record the Mortgage and Assignment of Leases and Rents and file UCC financing statements and fixture filings with respect thereto as deemed necessary by Agent in the public records without any further action of or notice to the Administrative Borrower or any other party and without waiving such Event of Default. In addition, the Borrower shall promptly deliver or cause to be delivered to the Agent such further documents as may be reasonably requested by the Agent relating to such Real Estate, including without limitation, owner’s affidavits, updated legal opinions relating and copies of leases and such changes to the matters described Mortgage and Assignment of Leases and Rents as may be necessary or desirable to comply with changes in clause applicable law. In connection with the recording of the Mortgage and Assignment of Leases and Rents, the Agent may obtain, at the Borrower’s sole cost and expense, a mortgagee’s title insurance policy with respect to each Mortgaged Property encumbered by such Mortgage and Assignment of Leases and Rents in such amount as is determined by the Agent. The Borrower shall upon demand pay the cost of any such mortgagee’s title insurance policy, the cost of any updated UCC searches, all recording costs and fees, and any and all intangible taxes or other documentary or mortgage taxes, assessments or charges which are demanded in connection with the recording of any of the Mortgages or Assignments of Leases and Rents. In addition, the Borrower shall pay within five (i5) immediately precedingdays after demand any and all costs, fees, intangible tax, documentary or mortgage tax, assessments or charges as are demanded by any governmental authority by reason of any Mortgage or Assignment of Leases and Rents to Agent prior to the recording of the same. In the event that the Borrower fails to pay such amounts as provided in this section, then the Banks may advance such amounts as are required to be paid as Loans hereunder, which opinions Loans shall bear interest at the Default Rate.
(e) Within ten (10) days of the Borrower acquiring, forming, holding or otherwise receiving or owning after the Closing Date any Equity Interest in a Subsidiary or Unconsolidated Affiliates (other than an Equity Interest in a Subsidiary that is covered by §5.4(a) or that is an Unpledgeable Interest), the Borrower shall cause to be delivered to the Agent each of the following in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding : (i) a supplement or amendment to the foregoingAssignment of Interests (or if no Assignment of Interests has been executed by the applicable party, no Immaterial Subsidiary or Foreign Subsidiary then the Assignment of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of Interests) executed by the Borrower or any of its Subsidiaries if more than 65% the applicable Subsidiary, subjecting such Equity Interest (or interest therein) to the Lien of the assets Assignment of Interests; (ii) all original existing certificates, if any, representing shares of Equity Interests pledged pursuant to the Assignment of Interests, together with an undated stock or similar power for each such certificate executed in blank by a duly authorized officer of Borrower or such Subsidiary, together with an Acknowledgement substantially in the form of Exhibit G to the Assignment of Interests, duly executed by any issuer of such Equity Interest; (iii) all formation and organizational agreements relating to any Person to which such pledged Equity Interest relate as Agent may reasonably require; (iv) results from a recent UCC lien search as to Borrower or the applicable Subsidiary are securities of foreign companies (in such determination to be made on the basis of fair market value)jurisdictions as Agent may designate, which results shall be required satisfactory to be pledged hereunderAgent; and (v) such certified organizational documents, updated good standing certificates, resolutions, incumbency certificates, legal opinions and other documents as Agent may reasonably require.
Appears in 1 contract
Sources: Credit Agreement (GTJ REIT, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly Subsidiary created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower (other than an Excluded Subsidiary), such Subsidiary shall, within twenty (20) days of the creation or any acquisition of its Subsidiaries that is intended to be subject such Subsidiary:
(a) become party to the Lien created by any of the Pledge Agreements but which is not so subject, promptly applicable Security Documents; and
(and in any event within 30 days after the acquisition thereof): b) take such actions necessary or advisable to:
(i) execute and deliver to grant in favor of the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, Collateral Trustee for the benefit of the Lenders, the Administrative Agent and Crest a legal, valid and enforceable Lien in all right, title and interest of such Subsidiary in the Collateral of such Subsidiary, and cause such Lien described in this Section 7.14(b) to be a Perfected First Lien on all right, title and interest of such Capital StockCollateral which can be perfected by the filing of a Uniform Commercial Code financing statement, subject to the existence and priority of such Liens permitted pursuant under Section 8.3, including, without limitation, the Crest Permitted Lien;
(ii) take all actions necessary or advisable to cause any Collateral of such Lien Subsidiary included in the Borrowing Base at any time to be duly perfected in accordance with all applicable Requirements of Lawsubject to a Perfected First Lien at such time, including delivering all such original certificates evidencing such Capital Stock subject to the Administrative Agent together with undated stock powers executed existence and, in blank thereforthe case of such Liens which are Permitted Borrowing Base Liens and the Crest Permitted Lien, and the priority of any Liens permitted under Section 8.3,
(iii) cause an Account Control Agreement for each Deposit Account, Securities Account and Commodity Account of such Subsidiary to be executed and delivered by such Subsidiary and the bank, broker or other Person maintaining such Deposit Account, Securities Account or Commodity Account, and
(iv) for Collateral of such Subsidiary located outside of the United States and included in the Borrowing Base and if otherwise reasonably requested by the Administrative Agent or the Required LendersCollateral Trustee, deliver to the Administrative Agent Collateral Trustee legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingabove, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial SubsidiaryCollateral Trustee.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With Subject to subsection 7.9(d), --------------------- with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Effective Date by the Borrower or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (but, in any event, excluding (x) any assets described in paragraph (b) or (c) of this subsection, (y) assets acquired or owned pursuant to subsection 8.6(h)(i) that are not equity interests in or assets held by a wholly-owned Subsidiary and (z) immaterial assets), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, and (ii) take all actions necessary or advisable to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing jurisdictions as may be reasonably requested by the Administrative Agent. In addition, if any License is acquired by the Borrower or any of its Subsidiaries (other than any License Subsidiary) the Borrower will promptly transfer or cause the transfer to a License Subsidiary of such License and (ii) any Real Property Assets (other than Secured Real Property Assets) or any Real Property-Related Equipment (other than Secured Real Property-Related Equipment) is acquired by the Borrower or any Subsidiary (other than a Real Property Subsidiary) the Borrower will promptly transfer or cause the transfer of such assets to a Real Property Subsidiary.
(b) With respect to any Person that is or becomes a Subsidiary (other than any Foreign Subsidiary of the Borrower) that has material assets, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new collateral agreement or such amendments to the relevant Collateral Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank thereforby a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and (iii) if cause such new Subsidiary (A) to become a party to the Subsidiary Guarantee and/or the Collateral Agreement or such comparable documentation which is in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable to cause the Lien created by the Collateral Agreement to be duly perfected to the extent required by such agreement 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 is or becomes a Foreign Subsidiary of the Borrower and that has material assets, promptly upon the request of the Administrative Agent: (i) execute and deliver to the Administrative Agent a new pledge agreement or such amendments to the Required relevant Collateral Agreement as the Administrative Agent reasonably shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall more than 65% of the Capital Stock of any such Foreign Subsidiary be required to be so pledged), and (ii) if such Capital Stock is issued in certificated form, deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock, and if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding .
(d) Upon the foregoingrequest of the Administrative Agent, the Borrower shall not be required to will, and will cause its Domestic Subsidiaries (other than a Real Property Subsidiary) to, promptly grant to the Administrative Agent Agent, within 60 days of such request, security interests and mortgages (a Lien upon "Mortgage") in such Real Property Assets of -------- the Capital Stock of any Immaterial Borrower and its Domestic Subsidiaries (other than a Real Property Subsidiary.
(b) With respect to any Person as are acquired after the date hereof by the Borrower or such Subsidiary and that, subsequent to together with any improvements thereon, individually have a value of at least $50,000, as additional security for the Original Closing Date, becomes a direct or indirect Subsidiary obligations of the Borrower, promptly Credit Parties under any Credit Document (and in any event within 30 days after such Person becomes unless the subject Real Property Asset is already mortgaged to a Subsidiary): (i) cause such new Subsidiary to become a third party to the extent permitted by subsection 8.2). The requirement of the foregoing sentence shall not apply to any Real Property Asset acquired by a Real Property Subsidiary Pledge Agreement or transferred to a Real Property Subsidiary within 60 days of a request by the Administrative Agent for a Mortgage in such Real Property Asset. Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Subsidiary Guarantee Administrative Agent and (ii) if shall constitute valid and enforceable perfected Liens subject only to Permitted Liens and such other Liens reasonably acceptable to the Administrative Agent. The Mortgages or 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 required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. If requested by the Administrative Agent or the Required Lenders, deliver the Borrower shall provide a lender's title policy with respect to each such Mortgage paid for by the Borrower, issued by a nationally recognized title insurance company, together with such endorsements, coinsurance and reinsurance as may be reasonably requested by the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingAgent, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding , insuring each Mortgage as a first lien on the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of relevant Secured Real Property Asset and subject only to Liens expressly agreed to by the Administrative Agent.
(e) the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% satisfy the Further Real Estate Condition within 120 days of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderEffective Date.
Appears in 1 contract
Sources: Credit Agreement (Iwo Holdings Inc)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary property acquired after the Original Closing Date by the Borrower or (other than any of its Subsidiaries that is intended Real Property described in paragraph (b) below) as to be subject to which the Lien created by any Collateral Agent, for the benefit of the Pledge Agreements but which is Secured Parties, does not so subjecthave a perfected Lien, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Collateral Agent such amendments to the relevant Pledge Agreements or such other documents Security Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Collateral Agent, for the benefit of the LendersSecured Parties, a Lien on security interest in such Capital Stockproperty, subject to Permitted Liens and (ii) take all actions necessary or advisable to cause grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Lien to be duly perfected in accordance with all applicable Requirements of Lawproperty, including delivering all the filing of UCC financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be required by the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if applicable Security Agreement or by law or as may be requested by the Administrative Collateral Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryexcept for Permitted Liens.
(b) With respect to any Person that, subsequent On or prior to the Original Closing Datefirst Borrowing Date in each month until a first priority Mortgage has been recorded for all Project Properties, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Borrower shall (i) cause such new Subsidiary execute and deliver an executed first priority Mortgage (or supplement thereto), in favor of the Administrative Agent, for the benefit of the Secured Parties, with respect to become a party Project Properties so that after giving effect to the Subsidiary Pledge Agreement and recordation of such Mortgage (or supplement) not less than 90% by number of the Subsidiary Guarantee Requisite Project Properties on such Borrowing Date shall then be subject to a Mortgage and (ii) if requested by the Administrative Agent Agent, provide the Financing Parties with (x) in respect of Project Properties acquired in fee, title and extended coverage insurance covering such Project Properties constituting Substation Sites in an amount at least equal to the purchase price of the Substation Sites, and with respect to any Project Properties acquired that are Substation Sites, a current ALTA survey thereof, together with a surveyor’s certificate and (y) any consents or the Required Lenders, deliver to estoppels reasonably deemed necessary or advisable by the Administrative Agent legal opinions relating to in connection with such Mortgage, each of the matters described in clause (i) immediately preceding, which opinions shall be foregoing in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (InfraREIT, Inc.)
Additional Collateral. (a) With respect The Company agrees that on or before the 5th Domestic Business Day after the Waiver Effective Date, it will satisfy the Mortgage Condition. The Company further agrees that in connection with the mortgage on Reservoir Site Property, the Company shall also be obligated to deliver to the Administrative Agent such surveys, title commitments (but not title insurance) and legal opinions and other documents as the Administrative Agent may reasonably request relating to the creation and perfection and due recordation of, and corporate or other authority for and validity of, the mortgage, the name of the legal owner of the Reservoir Site Property and the accuracy of the legal description thereof, and any other matters relevant thereto, all in form and substance (and, in the case of legal opinions from such counsel) reasonably satisfactory to the Administrative Agent.
(b) The Company agrees that on or before the Waiver Effective Date, it will satisfy the Security Agreement Condition. The Company further agrees that in connection with the Security Agreement, (i) the Company shall also be obligated to deliver to the Administrative Agent such legal opinions and other documents as the Administrative Agent may reasonably request relating to the existence of the relevant Lien grantor, the corporate or other authority for and validity of the Collateral Documents applicable thereto, the creation and perfection (or due recordation) of the Lien purportedly created thereby and the accuracy of the legal description thereof, and any other matters relevant thereto, all in form and substance (and, in the case of legal opinions from such counsel) reasonably satisfactory to the Administrative Agent and (ii) if within the period of five Domestic Business Days after a copy of the Security Agreement as so amended is distributed to the Lenders the Required Lenders notify the Administrative Agent that, in their commercially reasonable judgment, they object to any Capital Stock exception allowed by the Administrative Agent as contemplated above, the Company shall also be obligated to enter into, and cause the Subsidiary Guarantors to enter into, a further amendment of the Security Agreement further extending the liens and security interests created thereby to the property so excepted (failing which the judgment of the Administrative Agent shall be conclusive as to the Lenders).
(c) The Company agrees that in connection with its obligations under Section 6(a) and 6(b) it shall pay or provide for the payment of all costs and expenses in connection with the granting, perfecting, recording and maintenance of any newly created such Lien, including the preparation, execution, delivery, recordation or acquired Subsidiary or any newly issued Capital Stock filing of any existing Subsidiary acquired after documents that the Original Closing Date by the Borrower or any of its Subsidiaries Administrative Agent may reasonably request in connection therewith.
(d) The Company also agrees that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectpromptly, promptly (and in any event within 30 days one week, after the acquisition thereof): (i) execute Waiver Effective Date it will prepare and deliver to the Administrative Agent a schedule of all real estate (land and plants, warehouses or other buildings and improvements) owned or leased by it or any Subsidiary Guarantor and located in the United States, and will identify (i) which of those properties constitute Principal Properties (as defined in the Indenture) based on the 2% of Consolidated Net Tangible Assets test in such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, definition and (ii) take all actions necessary which of those properties have been or advisable to cause could be designated as not Principal Properties by the Company's Board of Directors as contemplated by clauses (a) and (b) of such Lien to be duly perfected in accordance with all applicable Requirements definition. The Company will promptly initiate and diligently pursue the process of Lawobtaining, including delivering all such original certificates evidencing such Capital Stock at its own expense, for delivery to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) surveys of and title commitments for (but not title insurance) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant written appraisals by independent appraisers of recognized standing acceptable to the Administrative Agent a Lien upon of the Capital Stock fair market value of any Immaterial Subsidiaryeach property listed on such schedule.
(be) With respect to any Person that, subsequent to The Company acknowledges and agrees that the Original Closing Date, becomes a direct or indirect Subsidiary willingness of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary Required Lenders to become a party to grant the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substancewaivers granted hereby, and from counselthus make available Borrowings in excess of $320,000,000 that the Company would otherwise not be entitled to request, reasonably satisfactory to is expressly in exchange for the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary granting of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, Liens on additional property as provided in Section 6(a) and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value6(b), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (Polaroid Corp)
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) in the case of each such Wholly Owned Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is an Unrestricted Subsidiary, a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to become a “Subsidiary Guarantor” and a “Grantor” under the Guarantee and Collateral Agreement and, after the occurrence of the Ratings Event, each other relevant Security Document, (ii) cause the Capital Stock of such Wholly Owned Subsidiary (unless it is an Unrestricted Subsidiary) to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or a Subsidiary thereof), no Capital Stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Subsidiary Guarantor, and then the amount of voting stock of such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to 65% of the outstanding shares of voting stock of such Subsidiary, (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge, (C) if the pledge of the Capital Stock of any such Wholly Owned Subsidiary would result in a violation of any laws, regulations or orders of any Governmental Authority, no shares of the Capital Stock of such Subsidiary shall be pledged, (D) no Capital Stock of SPX International GmbH, a cooperative association established under the laws of Germany, shall be pledged, (E) neither the Parent Borrower nor any Subsidiary Guarantor shall be required to pledge any Capital Stock of any newly created Ballantyne Holding Company, and, for the avoidance of doubt, none of Ballantyne Company, SPX C▇▇▇▇ Luxembourg S.à r.▇. or acquired Subsidiary or any newly issued SPX C▇▇▇▇ UK Limited shall be required to be a “Grantor” under the Guarantee and Collateral Agreement, (F) Capital Stock shall not be required to be pledged to the extent that the Guarantee and Collateral Agreement expressly provides that such Capital Stock is not required to be pledged, and (G) no Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended not a Material Subsidiary shall be required to be subject pledged (notwithstanding anything set forth in the Guarantee and Collateral Agreement) so long as the aggregate assets of all such Subsidiaries whose Capital Stock is not pledged as Collateral pursuant to this clause (G) does not exceed $25,000,000 when taken together for all such Subsidiaries (excluding the Lien created by assets of any Subsidiary the Capital Stock of the Pledge Agreements but which is not so subjectrequired to be pledged pursuant to clauses (A) – (F)) on an aggregate basis) and (iii) except in the case of an Unrestricted Subsidiary, promptly a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(b) In the event the Parent Borrower obtains a corporate credit family rating from Moody’s and a corporate credit rating from S&P, promptly, and in any event within 30 60 days after (or such longer period as is reasonably acceptable to the acquisition thereof): Administrative Agent), following the first date on which the corporate family rating of the Parent Borrower from M▇▇▇▇’▇ is less than “Ba2” (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is less than “BB” (or not rated by S&P) (such date, the “Ratings Event”), the Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents, in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all property of such Person (but excluding (A) all real property (whether owned or leased) and leaseholds, (B) Capital Stock not required to be pledged pursuant to Section 5.11(a), (C) assets for which the pledge thereof or grant, or perfection, of a Lien on such Capital Stockthereon would result in a default, breach or other violation or right of termination under then-existing Contractual Obligations or laws, regulations or orders of any Governmental Authority, (D) any personal property (including titled vehicles) in respect of which perfection of a Lien is not governed by the UCC or, in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office, (E) any intellectual property to the extent a security interest therein is not perfected by filing a UCC financing statement or, in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office, (F) any intellectual property if the grant, or perfection, of a security interest therein shall constitute or result in (i) the abandonment, invalidation or rendering unenforceable of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein, (ii) take all actions necessary the breach or advisable termination pursuant to cause the terms of, or a default under, any contract or agreement related to such intellectual property or (iii) the violation of any applicable law, (G) any general intangible if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such general intangible, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder or (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (H) any lease, license, contract, property rights or agreement to which any Grantor (as defined in the Guarantee and Collateral Agreement) is a party or any of its rights or interests thereunder if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such lease, license, contract, property rights or agreement, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder, (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained, (iv) shall constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein or (v) shall constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (I) any Exempt Deposit Accounts and (J) those other assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) that is not already subject to a perfected first priority Lien to be duly perfected (except as permitted by Section 6.3) in accordance with all applicable Requirements favor of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforand (ii) take, and (iii) if cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Required LendersParent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) If, deliver as of any Collateral Date following the Ratings Event, any property of the Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any Security Document or any Restricted Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) is not already subject to a perfected first priority Lien (except to the same extent as not required pursuant to Section 5.11(b) or as permitted by Section 6.3) in favor of the Administrative Agent, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this Section 5.11(c) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequences to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(d) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, prior to the occurrence of the Ratings Event, no property other than Capital Stock (subject to the exceptions specified in Section 5.11(a)) shall be required to become Collateral.
(e) Promptly, and in any event within 60 days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first date after the Release Date on which the corporate family rating of the Parent Borrower from M▇▇▇▇’▇ is less than “Baa3” (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is less than “BBB-” (or not rated by S&P), the Parent Borrower shall (i) execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoing, the Parent Borrower and each Subsidiary Guarantor shall not be required to grant to the Administrative Agent Agent, for the benefit of the holders of the Obligations, a security interest in all property (and types of property) of such Person that constituted Collateral under the Guarantee and Collateral Agreement as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock not required to be pledged pursuant to Section 5.11(a) or other assets not required to be subjected to a Lien upon the Capital Stock of any Immaterial Subsidiary.
(bpursuant to Section 5.11(b)) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if take, and cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties.
(f) Notwithstanding anything to the contrary in this Section 5.11 or the Required Lendersany other Loan Document, deliver to the Administrative Agent legal opinions and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any purported Liens on): (i) the assets transferred to a Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction”) transferred, or in respect of which security interests are granted, pursuant to a Qualified Receivables Transaction, (iii) if the documentation relating to the matters described in clause (i) immediately precedingReceivables sale, factoring or securitization to which opinions shall be in form and substancesuch Receivables Entity is a party expressly prohibits such a Lien, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock or debt (whether or not represented by promissory notes) of or equity interests in any Foreign Subsidiary of issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries if more than 65% Restricted Subsidiaries, in each case in connection with a Qualified Receivables Transaction permitted by Section 6.6(c) and (iv) Capital Stock not required to be pledged pursuant to Section 5.11(a), (b) or (c). Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, neither the Parent Borrower nor any of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), Guarantors shall be required to take any action to perfect the security interest of the Administrative Agent in the Collateral other than (i) filing UCC financing statements, (ii) delivering Capital Stock required to be pledged hereunderpursuant to Sections 5.11(a), (b) and (c) (including stock powers endorsed in blank and other appropriate instruments of transfer), (iii) [reserved] and (iv) executing, delivering, filing and recording notices of grants of security interest with the United States Patent Office and/or United States Copyright Office.
(g) Notwithstanding anything herein to the contrary, no Foreign Subsidiary (or any Subsidiary thereof) shall, or shall be deemed to, guarantee any Borrowing by the Parent Borrower, and no assets of any Foreign Subsidiary (or Subsidiary thereof) shall be given as security for such Borrowing. This provision is meant to prevent any inclusions pursuant to Section 956 of the Code and shall be interpreted in accordance therewith.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Additional Collateral. To the extent not delivered to the Administrative Agent on or before the Effective Date (a) With including in respect to of after-acquired Persons that become directly owned by any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired Loan Party after the Original Closing Date by Effective Date), Holdings and the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, agree promptly (and in any event AMENDED AND RESTATED CREDIT AGREEMENT Macquarie Infrastructure Company Inc. event, within 30 days after 10 Business Days of the Effective Date or the date of acquisition thereof): of such property or Persons (ior such later date as may be agreed to by the Administrative Agent)) execute and to do, or cause each Loan Party to do, each of the following, unless otherwise agreed by the Administrative Agent:
(a) deliver to the Administrative Agent such duly-executed joinder and amendments to the relevant Pledge Agreements or such Agreement and, if applicable, other documents Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent and as the Administrative Agent shall deem reasonably deems necessary or advisable in order to effectively grant to the Administrative Agent, for the benefit of the LendersSecured Parties, a Lien on such Capital Stockvalid, perfected and enforceable first-priority security interest in the Stock and Stock Equivalents owned directly by any Loan Party in any acquired Person;
(iib) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating all certificates, instruments and other documents representing all Pledged Stock and all other Stock and Stock Equivalents being pledged pursuant to the matters described joinders and amendments executed pursuant to clause (a) above, together with, in clauses the case of certificated Pledged Stock and other certificated Stock and Stock Equivalents, undated stock powers endorsed in blank, in each case executed and delivered by a Responsible Officer of such Loan Party;
(ic) and to take such other actions as are necessary to create, maintain or perfect the security interest required to be granted pursuant to clause (iia) immediately precedingabove, which opinions shall including the filing of UCC financing statements in such jurisdictions as may be in form and substance, and from counsel, required by the Collateral Documents or by applicable Requirements of Law as may be reasonably satisfactory to requested by the Administrative Agent. Notwithstanding ; provided that notwithstanding anything to the foregoingcontrary in this Section 7.7, the Borrower no Loan Party shall not be required to grant pledge to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent pursuant to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of other Loan Document any Stock or Stock Equivalents that constitute Excluded Equity unless and until such Subsidiary are securities of foreign companies (such determination Stock or Stock Equivalents ceases to be made on the basis of fair market value), shall be required to be pledged hereunderconstitute Excluded Equity.
Appears in 1 contract
Additional Collateral. Borrower shall notify the Administrative Agent in writing not less than twenty (a20) With Business Days prior to (i) the acquisition by any member of the Consolidated Group or any Investment Affiliate of any Project or other Property which will either not be encumbered by Secured Indebtedness or will be encumbered by Secured Indebtedness that will permit the pledge of direct or indirect ownership interests in the owner of such Project or Property or (ii) the repayment in full of any Secured Indebtedness encumbering a Project or other Property currently owned by a member of the Consolidated Group or an Investment Affiliate, either from the Consolidated Group’s own funds or through the proceeds of a refinancing which will permit the pledge of direct or indirect ownership interests in the owner of such Project or Property (in each case under this clause (ii) and under clause (i), a “New Subject Property”) or (iii) creation or acquisition of a promissory note to be received in connection with the sale of a Project of the Consolidated Group (a “New Pledged Note”). Each such notice with respect to any Capital Stock a New Subject Property shall provide the Administrative Agent with copies of any newly created or acquired Subsidiary or any newly issued Capital Stock a rent roll, leasing activity reports, tenant sales reports (if applicable), all Leases, operating statements for each month for last twelve (12) months, the most recent owner’s title insurance policy, a current title insurance commitment and copies of any existing Subsidiary acquired after all underlying title exception documents, a current survey meeting ALTA standards, current property condition and zoning reports, and current Phase I environmental assessments, all dated not more than twelve (12) months prior to the Original Closing Date date of such notice (“Initial Diligence”) for distribution to the Lenders. The Administrative Agent shall notify Borrower in writing within fifteen (15) Business Days of receiving such notice if the Administrative Agent objects to adding the New Subject Property as Collateral. Each such New Subject Property not objected to by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created Administrative Agent shall become either a Collateral Property, if unencumbered by any Secured Indebtedness, or an Underlying Property with respect to which direct or indirect ownership interests therein shall be pledged pursuant to a Collateral Assignment, if encumbered by Secured Indebtedness which permits Pledged Equity Interests. Upon the date of the Pledge Agreements but which is not so subjectacquisition of such Project or Property or the date of such repayment of such prior Secured Indebtedness or the date of the creation or acquisition of such a New Pledged Note, promptly (and in any event within 30 days after as the acquisition thereof): case may be, the Borrower shall (i) if such Project or Property is unencumbered, cause the applicable Subsidiary owning such Property to (A) execute and deliver to the Administrative Agent such amendments a Joinder Agreement with respect to the relevant Pledge Agreements Subsidiary Guaranty (unless such Subsidiary has already executed or such other documents as joined in the Administrative Agent shall deem necessary or advisable to grant to the Administrative AgentSubsidiary Guaranty), for the benefit of the Lenders(B) execute, deliver and record a Lien Mortgage on such Capital StockNew Subject Property, (iiC) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described a lender’s policy of title insurance (with such coverages and endorsements as Administrative Agent may reasonably require) insuring such Mortgage in clauses (i) such amount and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, as is reasonably satisfactory to the Administrative Agent. Notwithstanding , together with an opinion of local counsel as to the foregoingform of such Mortgage similar to those opinions delivered under Section 4.1 with respect to the initial Mortgages, (D) approve for filing UCC-1 Financing Statements prepared by the Borrower shall Administrative Agent with respect to any related personal property, (E) obtain and deliver to the Administrative Agent estoppel certificates from tenants under all Major Leases with respect to each Collateral Property (to the extent available after reasonable collection efforts) and (F) use commercially reasonable efforts to obtain and deliver to the Administrative Agent subordination, disturbance and attornment agreements in a form satisfactory to the Administrative Agent from tenants under Major Leases with respect to each Collateral Property representing in the aggregate not be required less than seventy-five percent (75%) of the total gross leasable area or rentable area, as applicable, at such Collateral Property demised under Major Leases, or (ii) if such Project or Property is encumbered by Secured Indebtedness, cause the applicable Subsidiary owning such Property to grant (A) execute and deliver to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With Joinder Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and Guaranty (unless such Subsidiary has already executed or joined in the Subsidiary Guarantee Guaranty), (B) execute and deliver a Collateral Assignment with respect to the ownership interests in such Property in substantially the same form as the Collateral Assignment attached as Exhibit H-2, and (iiC) if requested by execute, deliver and/or approve for filing such UCC-1 financing statements, acknowledgments and membership, partnership and stock certificates and blank transfer powers, as the Administrative Agent on behalf of the Lenders shall deem reasonably necessary or the Required Lendersdesirable to obtain and perfect a first priority Lien against such ownership interests, (iii) in either case, execute and deliver to the Administrative Agent legal opinions relating a written confirmation that, as of the date such New Subject Property (or a Pledged Equity Interest therein) is included in Collateral, all of the representations and warranties contained in Section 5.23 hereof are true and correct in all material respects with respect to such New Subject Property as if it (or a Pledged Equity Interest therein) had been included in the matters described Collateral as of the Amendment Effective Date, together with certificates evidencing that all insurance with respect to such additional Collateral Property or Underlying Property as required under Section 5.16 is in clause (i) immediately preceding, which opinions shall be in form full force and substanceeffect, and from counsel(iv) in the case of a New Pledged Note, reasonably satisfactory deliver the original thereof to the Administrative Agent. Notwithstanding Agent endorsed in blank on its face or by an allonge and execute and deliver to the foregoingAdministrative Agent a written confirmation that, no Immaterial Subsidiary or Foreign Subsidiary as of such date such New Pledged Note shall be subject to all of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, terms and no more than 65% conditions of the Capital Stock Collateral Assignment of Note Receivables. Except in accordance with this Section 2.3 and with Section 6.24 the Administrative Agent may not release the Mortgage on any Collateral Property or equity interests the Lien created by the applicable Collateral Assignment in the Pledged Equity Interests with respect to any Foreign Subsidiary Underlying Property or the Lien created with respect to any Pledged Note without the consent of the Majority Lenders. The Borrower or any hereby agrees to pay all direct, out-of-pocket costs and expenses of its Subsidiaries if more than 65% of Administrative Agent incurred in connection with the assets review and acceptance of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderadditional Collateral.
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Subsidiaries (including the Stock of newly created or acquired Subsidiaries) that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) of this Section and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Subsidiary, promptly: (i) execute and deliver to the Administrative Agent, for the benefit of the BorrowerLenders, promptly such amendments to the Subsidiary Pledge and Security Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in any event within 30 days after blank by a duly authorized officer of the Borrower or such Person becomes a Subsidiary): , as the case may be, (iiii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement and Security Agreement, the Subsidiary Guarantee and the Mortgages delivered pursuant to clause (iiB) below, in each case pursuant to documentation which is in form and substance reasonably satisfactory to the Administrative Agent, (B) to deliver to the Documentation Agent Mortgages in form and substance reasonably satisfactory to the Documentation Agent with respect to all real property of such Subsidiary, and (C) to take all actions necessary or advisable to cause each Lien created by the Subsidiary Pledge and Security Agreement and the Mortgages delivered pursuant to clause (B) above 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 requested by the Administrative Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of Holdings or the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge and Security Agreement, and no more than 65% of the Capital Stock capital stock of or equity interests in any Foreign Subsidiary of the Borrower Borrower, Holdings or any of its their Subsidiaries, or any other of their Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
(c) As promptly as practicable, but in any event within 120 days following the Closing Date, the Borrower shall have delivered to the Administrative Agent (A) a Mortgage with respect the real property described in Part I of Schedule 6.10, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender and (B) legal opinions from local counsel in the jurisdiction of such Mortgage relating to such Mortgage and the perfection of Liens created by the Security Documents on personal property located in such jurisdiction, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(d) As promptly as practical, but in any event within 120 days following the Closing Date, the Borrower shall have delivered to the Administrative Agent and the Title Insurance Company maps or plats of an as-built survey of the sites of the property covered by each Mortgage set forth on Part II of Schedule 6.10 certified to the Administrative Agent and the Title Insurance Company in a manner 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, which maps or plats and the surveys on which they are based shall be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites or necessary or desirable to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (F) if the site is described as being on a filed map, a legend relating the survey to said map.
(e) As promptly as practical, but in any event within 120 days following the Closing Date, the Borrower shall deliver to the Administrative Agent in respect of each parcel covered by each Mortgage set forth on Part II Schedule 6.10 a mortgagee's title policy (or policies) or marked up unconditional binder for such insurance dated a date reasonably satisfactory to the Agents. Each such policy shall (A) be in an amount reasonably satisfactory to the Agents; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first Lien on such parcel free and clear of all defects and encumbrances, except for liens permitted by clauses (a), (e), (f) and (g) of the definition of Permitted Liens and such other liens and defects as may be approved by the Agents; (D) name the Administrative Agent for the benefit of the Lenders as the insured thereunder; (E) be in the form of ALTA Loan Policy - 1992; (F) contain such endorsements and affirmative coverage as the Agents may reasonably request and (G) be issued by title companies satisfactory to the Agents (including any such title companies acting as co-insurers or reinsures, at the option of the Agents). The Administrative Agent shall have received evidence reasonably satisfactory to it that all premiums in respect of each such policy, and all charges for mortgage recording tax, if any, have been paid.
(f) As promptly as possible, but in any event within 120 days following the Closing Date, the Borrower shall deliver to the Administrative Agent a copy of all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in subsection 6.10(d) and a copy, certified by such parties as the Agents may reasonably deem appropriate, of all other documents affecting the property covered by each Mortgage set forth on Schedule 6.10.
(g) As promptly as possible, but in any event within 120 days following the Closing Date, if required pursuant to Regulation H of the Board of Governors of the Federal Reserve System ("Regulation H") the Borrower shall deliver to the Administrative Agent (A) a policy of flood insurance which (1) covers the parcel of improved real property which is encumbered by the Mortgage with respect to the real property set forth on Part I of Schedule 6.10, (2) is written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage which is reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, and (3) has a term ending not earlier than the maturity of the Indebtedness secured by such Mortgage and (B) confirmation that the Borrower has received the notice required pursuant to Section 208(e)(3)
Appears in 1 contract
Additional Collateral. Provided no Default or Event of Default exists, the Borrower shall have the right, subject to consent of the Agent (which consent may be withheld in its sole and absolute discretion) and the satisfaction by the Borrower of the conditions set forth in this §5.3, to add Potential Collateral to the calculation of Borrowing Base Availability. In the event the Borrower desires to add additional Potential Collateral to the Borrowing Base Availability as aforesaid, the Borrower shall provide written notice to the Agent of such request. No Potential Collateral shall be included in the calculation of the Borrowing Base Availability unless and until the following conditions precedent shall have been satisfied as determined by Agent (or as required by this Agreement, the Required Lenders):
(a) With respect such Potential Collateral shall be Eligible Real Estate;
(b) such Real Estate shall be owned by a Wholly-Owned Subsidiary of the Borrower, and said Wholly-Owned Subsidiary (and each other Subsidiary of Borrower owning an interest therein) shall have executed a Joinder Agreement and satisfied the conditions of §5.4;
(c) prior to any Capital Stock or contemporaneously with such addition, the Borrower shall have submitted to the Agent a Compliance Certificate prepared using the financial statements of any newly created the Borrower most recently provided or acquired Subsidiary required to be provided to the Agent under §6.4 or any newly issued Capital Stock §7.4 and a Borrowing Base Certificate, both prepared on a pro forma basis and adjusted to give effect to such addition, and shall certify that after giving effect to such addition, no Default or Event of any existing Subsidiary acquired after the Original Closing Date by Default shall exist;
(d) the Borrower or any the Wholly-Owned Subsidiary which is the owner of its Subsidiaries that is intended to be subject the Real Estate shall have executed and delivered to the Lien created by any Agent all Borrowing Base Qualification Documents, all of the Pledge Agreements but which is not so subjectinstruments, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions agreements shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant ;
(e) after giving effect to the Administrative Agent a Lien upon the Capital Stock inclusion of any Immaterial Subsidiary.
(b) With respect to any Person thatsuch Eligible Real Estate, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary each of the Borrower, promptly (representations and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested warranties made by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary on behalf of the Borrower or the Guarantors or any of its their respective Subsidiaries if more than 65% contained in this Agreement, the other Loan Documents or in any document or instrument delivered pursuant to or in connections with this Agreement shall be true in all material respects both as of the assets date of which it was made and shall also be true as of the time of the addition of such Subsidiary are securities Borrowing Base Property with the same effect as if made at and as of foreign companies that time, except to the extent of changes resulting from transactions permitted by the Loan Documents (such determination to be it being understood and agreed that any representation or warranty which by its terms is made on the basis as of fair market value), a specified date shall be required to be pledged hereundertrue and correct only as of such specified date), and no Default of Event of Default shall have occurred and be continuing and the Agent shall have received a certificate of the Borrower to such effect; and
(f) the Agent as required above shall have consented to the inclusion of such Real Estate in the calculation of Borrowing Base Availability, which consent may be granted in the Agent’s sole and absolute discretion.
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets, other than leasehold interests, acquired after the Original Closing Date by the Borrower Company or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than any assets described in paragraph (b) or (c) of this subsection), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent (including Mortgages) shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such assets, (ii) take all actions reasonably necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law as contemplated by such Security Documents, including, without limitation, the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent, (iii) in the case of a Mortgage, deliver to the Administrative Agent such surveys, policies and other documents as the Administrative Agent would have received pursuant to subsections 8.1(v), 8.1(w), 8.1(x) and 8.1(y) of the Original Credit Agreement if the relevant parcel of real property has been subject to a Mortgage on the Original Closing Date, all in form and substance reasonably satisfactory to the Administrative Agent and (iv) if reasonably requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. With respect to any Person that, subsequent to the Original Closing Date, becomes a Subsidiary (other than a Foreign Subsidiary), promptly: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the Amended and Restated Guarantee and Collateral Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Company or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Company or such Subsidiary, as the case may be, (iiiii) cause such new Subsidiary (A) to become a party to the Amended and Restated Guarantee and Collateral Agreement pursuant to an annex to the Amended and Restated Guarantee and Collateral Agreement which is in form and substance reasonably satisfactory to the Administrative Agent, (B) to execute and deliver a Mortgage with respect to any parcel of real property owned by it, (C) to take all actions necessary or advisable to cause the Lien created by the Amended and Restated Guarantee and Collateral Agreement or any such Lien Mortgage to be duly perfected in accordance with all applicable Requirements of LawLaw as contemplated by such Security Documents, including delivering including, without limitation, the filing of financing statements in such jurisdictions as may be requested by the Administrative Agent and (D) to execute and deliver such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization, existence and good standing of such Subsidiary, the authorization of the transactions contemplated hereby and by the other Loan Documents relating to such Subsidiary and any other legal matters relating to such Subsidiary and the Loan Documents to which it is or is to become a party (including, if requested by the Administrative Agent, satisfactory environmental reports or assessments with respect to each parcel of real property covered by a Mortgage), all such original certificates evidencing such Capital Stock in form and substance satisfactory to the Administrative Agent and its counsel, (iv) in the case of a Mortgage, deliver to the Administrative Agent such surveys, policies and other documents as the Administrative Agent would have received pursuant to subsections 8.1(v), 8.1(w), 8.1(x) and 8.1(y) of the Original Credit Agreement if the relevant parcel of real property has been subject to a Mortgage on the Original Closing Date, all in form and substance reasonably satisfactory to the Administrative Agent and (v) if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. With respect to any Person that, subsequent to the Original Closing Date, becomes a Foreign Subsidiary, promptly upon the request of the Administrative Agent: (i) to the extent permitted by applicable law, execute and deliver to the Administrative Agent a new pledge agreement or such amendments to the Amended and Restated Guarantee and Collateral Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Company or any of its Domestic Subsidiaries (provided that in no event shall more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver to the Administrative Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank thereforby a duly authorized officer of the Company or such Domestic Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingforegoing provisions of this subsection 9.10, the Borrower (i) none of KCII, KCI International and KCII Holdings LLC shall not be required to grant to the Administrative Agent a Lien upon ▇▇▇▇▇ ▇ ▇▇▇▇ on the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person thatEMD CV and IMD CV owned by them, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than only 65% of the Capital Stock of or equity interests in any Foreign Subsidiary each of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value)KCII, KCI International and KCII Holdings LLC shall be required to be pledged hereunder.pledged. NEGATIVE COVENANTS The Company hereby agrees that, so long as the Commitments remain in effect or any Letter of Credit remains outstanding and unpaid or any amount is owing to any Lender or the Administrative Agent hereunder or under any other Loan Document, the Company shall not, and (except with respect to subsection 10.1) shall not permit any of its Subsidiaries to, directly or indirectly:
Appears in 1 contract
Sources: Credit and Guarantee Agreement (Kinetic Concepts Inc /Tx/)
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) cause such Subsidiary (unless it is a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to any become a “Subsidiary Guarantor” under the Guarantee and Collateral Agreement, (ii) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to become a “Grantor” under the Guarantee and Collateral Agreement and, after the occurrence of the Ratings Event, each other relevant Security Document, (iii) cause the Capital Stock of any newly created such Wholly Owned Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or acquired a Subsidiary or any newly issued thereof), no Capital Stock of any existing such Subsidiary acquired after the Original Closing Date shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or any a Domestic Subsidiary, and then the amount of voting stock of such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to 66% of the outstanding shares of voting stock of such Subsidiary, and (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge) and (iv) except in the case of a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is intended excessive in relation to the value of the collateral security to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectafforded thereby.
(b) Promptly, promptly (and in any event within 30 days after (or such longer period as is reasonably acceptable to the acquisition thereof): Administrative Agent), following the first date on which the outstanding Indebtedness under this Agreement is rated “Ba2” or less by M▇▇▇▇’▇ and “BB” or less by S&P (such date, the “Ratings Event”), the Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents, in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all property of such Person (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding (A) all other real property, (B) Capital Stock not required to be pledged pursuant to Section 5.11(a), (C) assets that cannot be pledged as collateral due to existing legal or contractual prohibitions and (D) those assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) that is not already subject to a perfected first priority Lien on such Capital Stock, (except as permitted by Section 6.3) in favor of the Administrative Agent and (ii) take all take, and cause the relevant Subsidiaries to take, such actions as shall be necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if reasonably requested by the Administrative Agent or the Required Lendersto grant and perfect such Liens, deliver to the Administrative Agent legal opinions relating to the matters including actions described in clauses (i) Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower its Subsidiaries shall not be required to grant comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) If, as of any Collateral Date following the Ratings Event, any property of the Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any Security Document or any Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding (A) all other real property, (B) Capital Stock not required to be pledge pursuant to Section 5.11(a), (C) assets that cannot be pledged as collateral due to existing legal or contractual prohibitions and (D) those assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) is not already subject to a perfected first priority Lien (except as permitted by Section 6.3) in favor of the Administrative Agent, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien upon under the Capital Stock relevant Security Documents and will take, and cause the relevant 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 Section 5.12, all at the expense of any Immaterial Subsidiarythe Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(c) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(bd) With respect to any Person that, subsequent Notwithstanding anything to the Original Closing Datecontrary in this Section 5.11 or any other Loan Document, becomes a direct or indirect Subsidiary prior to the occurrence of the BorrowerRatings Event, promptly no property other than Capital Stock shall be required to become Collateral.
(e) Promptly, and in any event within 30 days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first date after such Person becomes a Subsidiary): the Release Date on which the outstanding Indebtedness under this Agreement is rated less than “Baa3” by M▇▇▇▇’▇ or less than “BBB-” by S&P, the Parent Borrower shall (i) execute and deliver, and cause such new each Subsidiary Guarantor to become a party to the Subsidiary Pledge Agreement execute and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lendersdeliver, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoingParent Borrower and each Subsidiary Guarantor shall grant to the Administrative Agent, no Immaterial Subsidiary or Foreign Subsidiary for the benefit of the Borrower Lenders, a security interest in all property (and types of property) of such Person that constituted Collateral under the Guarantee and Collateral Agreement as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock not required to be pledged pursuant to Section 5.11(a)) and (ii) take, and cause the relevant Subsidiaries to take, such actions as shall be required necessary or reasonably requested by the Administrative Agent to execute grant and perfect such Liens, including actions described in Section 5.12, all at the expense of the Loan Parties.
(f) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, the Administrative Agent and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any Liens on): (i) the assets transferred to a Subsidiary Guarantee Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction”) transferred, or Subsidiary Pledge Agreementin respect of which security interests are granted, pursuant to a Qualified Receivables Transaction and no more than 65% of (iii) if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such a Lien, the Capital Stock or debt (whether or not represented by promissory notes) of or equity interests in any Foreign Subsidiary of issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valueSubsidiaries, in each case in connection with a Qualified Receivables Transaction permitted by Section 6.6(c), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Additional Collateral. (a) With Subject to subsection 6.12 with --------------------- respect to the mortgages, with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) of this subsection and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Subsidiary, promptly: (i) execute and deliver to the Administrative Agent, for the benefit of the BorrowerLenders, promptly such amendments to the Guarantee and Collateral Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in any event within 30 days after blank by a duly authorized officer of the Borrower or such Person becomes a Subsidiary): , as the case may be, (iiii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and Collateral Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by the Guarantee and Collateral Agreement 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 requested by the Administrative Agent and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. The Company, ▇▇▇▇▇, Inc., a Delaware corporation, Kasco Corporation, a Delaware corporation, ▇▇▇▇▇ Viscor, Ltd., a Texas limited partnership, ▇▇▇▇▇ Signtech, Ltd., a Texas limited partnership, and ▇▇▇▇▇ Med International LLC, a Delaware limited liability company (together with the Company herein referred to as the Pledgors) hereby grant to Administrative Agent for the benefit of Lenders a lien upon the Collateral to secure the Obligations. In addition, Pledgors agree that:
(a) With respect The Pledgors will properly preserve the Collateral; defend the Collateral against any adverse claims and demands; and keep accurate books and records.
(b) Unless otherwise agreed, except to any Capital Stock of any newly created the extend permitted by Section 7.01 or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date otherwise permitted by the Borrower or Lenders, the Pledgors have not granted and will not grant any of its Subsidiaries that is intended to be subject to the Lien created by security interest in any of the Pledge Agreements but which is not so subjectCollateral except to the Administrative Agent, and will keep the collateral free of all liens, claims, security interests and encumbrances of any kind or nature except the security interest of the Administrative Agent.
(c) Pledgors will promptly (and notify the Administrative Agent in writing of any event within 30 days after which affects the acquisition thereof): value of the Collateral, the ability of the Pledgors or the Administrative Agent to dispose of the Collateral, or the rights and remedies of the Administrative Agent in relation thereto, including, but no limited to, the levy of any legal process against any collateral and the adoption of any marketing order, arrangement or procedure affecting the Collateral, whether governmental or otherwise.
(id) execute Pledgors will not sell, lease, agree to sell or lease, or otherwise dispose of any Collateral except with the prior written consent of the Administrative Agent; provided, however, that Pledgors may sell inventory in the ordinary course of business.
(e) Pledgors will maintain and keep in force insurance covering the Collateral against fire and extended coverages, to the extent that any Collateral is of a type which can be so insured. Such insurance shall require losses to be paid on a replacement cost basis, be issued by insurance companies acceptable to the Administrative Agent and include a loss payable indorsement in favor of the Administrative Agent in a form acceptable to the Administrative Agent. Upon the request of the Administrative Agent, Pledgors will deliver to the Administrative Agent such amendments a copy of each insurance policy, or, if permitted by the Administrative Agent, a certificate of insurance listing all insurance in force.
(f) Pledgors will deliver to the relevant Pledge Agreements Administrative Agent (i) copies or extracts from the books and records, and (ii) information on any contracts or other matters affecting the Collateral as requested by Administrative Agent.
(g) Pledgors will permit Administrative Agent to examine the Collateral, including the books and records, and make copies of or extracts from the books and records, and for such other documents purposes enter at any reasonable time upon the property where any Collateral or any books and records are located.
(h) Pledgors will deliver to the Administrative Agent any instruments, chattel paper or letters of credit which are part of the Collateral, and to assign to the Administrative Agent the proceeds of any such letters of credit.
(i) Upon an event of default, Administrative Agent may take such measures as the Administrative Agent shall may deem necessary or advisable to grant to the Administrative Agenttake possession of, hold, preserve, process, assemble, insure, prepare for the benefit of the Lenderssale or lease, a Lien on such Capital Stockmarket for sale or lease, (ii) take all actions necessary sell or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Lawlease, including delivering all such original certificates evidencing such Capital Stock to or otherwise dispose of, any Collateral, and Pledgors hereby irrevocably constitute and appoint the Administrative Agent together with undated stock powers executed as the Pledgors’ attorney-in-fact to perform all acts and execute all documents in blank therefor, connection therewith.
11. The Agreement is hereby modified Section 7.01(i) and (iiiby adding Section 7.01(j) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses as follows:
(i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) immediately precedingthe Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition; and
(j) Liens granted pursuant to the terms of this Agreement as amended.
12. The definition of Interest Period is hereby deleted and the following is substituted in its place: Interest Period means, as to each Eurocurrency Rate Loan, the period commencing on the date such Eurocurrency Rate Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan and ending on the date one, two or three weeks or one, two, three or six months thereafter, as selected by the Company in its Committed Loan Notice; provided that:
(i) any Interest Period that would otherwise end on a day that is not a business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next proceeding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month(or on a day for which there is not numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
(iv) in addition, a Eurocurrency Rate Loan, which opinions is not in an Alternative Currency, may be based on the Daily Floating Eurocurrency Rate.
13. The Agreement is hereby modified by deleting Schedule 2.01 and restating same per the Schedule 2.01 attached hereto.
14. Company acknowledges that as of the date of this Amendment, Lender is not in default of any of its obligations to Company and there exist no claims, causes of action, rights of setoff or other defense in favor of Company against Lender. Company waives and releases any such claim, cause of action, right of setoff or other defenses in favor of Company against Lender and hereby waives any right to trial by jury in regard to any litigation between any and all of the parties to this Amendment. This provision is a material inducement for the Lender to enter into this Amendment.
15. Nothing herein invalidates or shall impair or release any covenant, condition, agreement or stipulation in the Agreement, and the same, except as herein modified, shall continue in full force and effect and Company further covenants and agrees to perform and comply with each and every of the covenants, agreements, conditions and stipulations of the Agreement which are not inconsistent herewith.
16. Except as herein modified, the Agreement is confirmed in its entirety.
17. In the case of conflict between the provisions of the Agreement, on the one hand, and this Amendment on the other hand, the provisions of this Amendment shall prevail.
18. This Amendment may be executed in any number of counterparts and by the parties hereto on separate counterparts, each of which when so executed and delivered shall be in form an original, but all of which shall together constitute one and substance, and from counsel, reasonably satisfactory to the Administrative Agentsame Amendment.
19. Notwithstanding the foregoing, the Borrower This Amendment shall not be required to grant to the Administrative Agent a Lien become effective upon the Capital Stock payment of any Immaterial Subsidiary.the sums set forth on the closing statement and the execution and delivery of the following documents (together referred to as the “Amendment Documents”):
(a) this Amendment;
(b) With respect to any Person thatthe Fourth Amended and Restated Guaranty;
(c) Restated Promissory Note in favor of Bank of America, subsequent to N.A. in the Original Closing Dateamount of $19,800,000.00;
(d) Restated Promissory Note in favor of Wachovia Bank, becomes a direct National Association in the amount of $13,200,000.00;
(e) the Board of Directors authorizing resolutions or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be other governing body resolutions in form and substancecontent reasonably acceptable to Lender, which resolutions will authorize and from counsel, ratify the adoption of the Amendment Documents and the execution and delivery of the Amendment Documents by the representatives of the Loan Parties who executed the applicable Loan Document;
(f) opinion of counsel for the Loan Parties in form and content reasonably satisfactory acceptable to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary ; and
(g) Summary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderClosing Costs.
Appears in 1 contract
Sources: Credit Agreement (Bairnco Corp /De/)
Additional Collateral. (a) With Prior to the Merger date, the Borrower shall, and shall cause each of its Subsidiaries to: with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Collateral Documents but which is are not so subjectsubject (other than any assets described in paragraph (b), (c), (d) or (e) of this Section 4.10), promptly (and in any event within 30 days after the acquisition or creation thereof): (i) execute and deliver to the Administrative Collateral Agent such amendments to the relevant Pledge Agreements Master Guarantee and Collateral Document or such other documents as the Administrative Collateral Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Collateral Agent a Lien on such Capital Stockassets, (ii) take all actions reasonably necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent (provided that for any Vehicles that are covered by a certificate of title, the Borrower shall cause such Lien to be duly perfected in accordance with all such original certificates evidencing such Capital Stock to applicable Requirements of Law within 90 days after the Administrative Agent together with undated stock powers executed in blank thereforacquisition thereof), and (iii) if requested by the Administrative Agent or the Required LendersCollateral Agent, deliver to the Administrative Collateral Agent within 30 days of such request legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, substance and from counsel, counsel reasonably satisfactory to the Administrative Collateral Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that(other than Daws▇▇ ▇▇ any existing Subsidiary of Daws▇▇) ▇▇at, subsequent to the Original Closing Date and prior to the Merger Date, becomes a direct or indirect Domestic Subsidiary of the BorrowerBorrower (including, without limitation, any Person which had previously been an Excluded Subsidiary), promptly (and in any event within 30 days after such Person becomes a Subsidiarythe acquisition or creation thereof): (i) execute and deliver to the Collateral Agent such amendments to the Master Guarantee and Collateral Agent Agreement as the Collateral Agent shall deem reasonably necessary or advisable to grant to the Collateral Agent a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers duly executed and delivered in blank, (iii) cause such new Domestic Subsidiary (A) to become a party to the Subsidiary Pledge Agreement and the Subsidiary 42 45 Master Guarantee and Collateral Agreement, pursuant to documentation which is in form and substance reasonably satisfactory to the Collateral Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by such security agreement to be duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the filing of Uniform Commercial Code financing statements in such jurisdictions as may be reasonably requested by the Collateral Agent (provided that for any Vehicles that are covered by a certificate of title, the Borrower shall cause such Lien to be duly perfected in accordance with all applicable Requirements of Law within 90 days after the acquisition thereof unless the Merger Date occurs prior thereto, and (iv) if requested by the Administrative Agent or the Required LendersCollateral Agent, deliver to the Administrative Collateral Agent within 30 days of such request legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, substance and from counsel, counsel reasonably satisfactory to the Administrative Collateral Agent.
(c) With respect to any fee interest in any real property acquired after the Closing Date and prior to the Merger Date by the Borrower or any of its Domestic Subsidiaries (including any such property owned by Daws▇▇ ▇▇ any of its Domestic Subsidiaries) having a purchase price (or, if acquired through a merger or stock acquisition, a fair market value) in excess of $1,000,000, promptly (i) execute and deliver a first priority mortgage or deed of trust, as the case may be (subordinate only to such mortgages or deeds of trust as are necessary to permit the Borrower or such Domestic Subsidiary to purchase such real property but subject to such easements, rights of way, restrictions and other similar encumbrances as such property may be subject at the time of acquisition), in favor of the Collateral Agent, covering such real property, in form and substance reasonably satisfactory to the Collateral Agent, (ii) provide to the Collateral Agent all necessary documents reasonably requested by the Collateral Agent to confirm the Borrower's or its Subsidiaries' ownership of such real property, (iii) if requested by the Collateral Agent, provide the Lenders with any consents or estoppels deemed necessary or advisable by the Collateral Agent in connection with such mortgage or deed of trust, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described in the preceding clauses (i) and (iii), which opinions shall be in form and substance and from counsel reasonably satisfactory to the Collateral Agent. Notwithstanding the foregoing, no Immaterial Subsidiary compliance shall not be required with the foregoing provision of this paragraph (c) in respect of any interest in real property which, at the time of acquisition thereof by the Borrower or its Subsidiary, is subject to a legal or contractual restriction that would prohibit the granting of a mortgage thereon to the Collateral Agent; provided, that the aggregate book valued of real property owned by the Borrower and its Subsidiaries so subject may not exceed $7,500,000 at any time.
(d) With respect to any Foreign Subsidiary of created or acquired after the Closing Date and prior to the Merger Date by the Borrower or any of its Domestic Subsidiaries, promptly (and in any event within 150 days after the acquisition or creation thereof)
(i) execute and deliver to the Collateral Agent such amendments to the Master Guarantee and Collateral Agreement (or comparable documentation) as the Collateral Agent deems reasonably necessary or advisable in order to grant to the Collateral Agent a perfected first priority security interest in the Capital Stock (except for Liens permitted under Section 4.14) of such new Foreign Subsidiary which is owned by the Borrower or any of its Domestic Subsidiaries (provided that in no event shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests any such new Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in any Foreign Subsidiary blank, executed and delivered by a duly authorized office of the Borrower or any of its Subsidiaries such Subsidiary, as the case may be, and (iii) if more than 65% of requested by the assets of such Subsidiary are securities of foreign companies Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described in the preceding clauses (such determination to be made on the basis of fair market valuei) and (ii), which opinions shall be required in form and substance and from counsel reasonably satisfactory to be pledged hereunderthe Collateral Agent.
(e) With respect to any oil and gas property acquired after the Closing Date and prior to the
Appears in 1 contract
Additional Collateral. (ai) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Should Borrower or any of its Subsidiaries purchase, otherwise acquire or own any Oil and Gas Property that is intended to be not already included in the Oil and Gas Property Collateral and the subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (an Oil and Gas Property Mortgage in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative favor of Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersLender Group, Borrower will grant or cause to be granted to Agent as security for the Obligations a first-priority Lien (subject only to Permitted Liens) on all of Borrower's or such Subsidiary's, as the case may be, interest in such Oil and Gas Properties not already subject to a Lien on of such Capital Stockan Oil and Gas Property Mortgage simultaneously with Borrower's or such Subsidiary's purchase, (ii) take all actions necessary acquisition or advisable to cause ownership of such Oil and Gas Property which Lien to will be duly created and perfected by and in accordance with the provisions of an Oil and Gas Property Mortgage and other security agreements and financing statements, or other security instruments, all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock in form and substance satisfactory to the Administrative Agent together with undated stock powers in its sole discretion and in sufficient executed in blank therefor, (and (iiiacknowledged where necessary or appropriate) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) counterparts for recording purposes; and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the should Borrower or any of its Subsidiaries if more than 65% purchase, otherwise acquire or own any Real Property that is not already included in the Real Property Collateral and the subject of a Real Property Mortgage in favor of Agent for the benefit of the assets Lender Group, Borrower will grant or cause to be granted to Agent as security for the Obligations a first-priority Lien (subject only to Permitted Liens) on all of Borrower's or such Subsidiary's, as the case may be, interest in such Real Property not already subject to a Lien of such Subsidiary a Real Property Mortgage simultaneously with Borrower's or such Subsidiary's purchase, acquisition or ownership of such Real Property which Lien will be created and perfected by and in accordance with the provisions of a Real Property Mortgage and other security agreements and financing statements, or other security instruments, all in form and substance satisfactory to Agent in its sole discretion and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes.
(b) Concurrently with the granting of the Lien or other action referred to in Section 6.18(a) above as to Oil and Gas Property, Borrower will provide to Agent title information and a title opinion in form and substance satisfactory to Agent in its sole discretion with respect to Borrower's or such Subsidiary's, as the case may be, interests in such Oil and Gas Properties, and concurrently with the granting of the Lien or other action referred to in Section 6.18(a) above as to Real Property, Borrower will provide to Agent title information and a mortgagee title insurance commitment in form and substance satisfactory to Agent in its sole discretion with respect to Borrower's or such Subsidiary's, as the case may be, interests in such Real Property.
(c) Borrower shall cause all of its present and future Subsidiaries that are securities of foreign companies (such determination 50% or more owned directly or indirectly by Borrower to be made on the basis of fair market value), shall be required to be pledged hereunderexecute a Guaranty Agreement and Security Agreements.
Appears in 1 contract
Additional Collateral. Subject to obtaining applicable consents of third parties, the Pledgor shall pledge to the Collateral Agent hereunder, immediately upon the acquisition (adirectly or indirectly) With respect to thereof, any Capital Stock and all shares of any newly created stock, partnership interests or acquired Subsidiary or any newly issued Capital Stock other equity interests of any existing Subsidiary acquired after the Original Closing Date by the Borrower Issuers or any of its Subsidiaries that is intended to be subject their affiliates hereafter acquired by the Pledgor. The Pledgor shall promptly deliver such Collateral to the Lien created by Collateral Agent, together with in the case of securities, a duly executed Pledge Agreement Supplement substantially in the form of Exhibit 3 hereto identifying such additional shares, partnership interests or equity interests which are being pledged, together with certificates representing such additional shares, partnership interests or equity interests and such additional writings, including without limitation assignments and duly signed undated stock or equity interest powers as the Pledgor must provide to the Collateral Agent to perform its duties hereunder and any additional documents with respect thereto as the Collateral Agent shall request. The Pledgor hereby authorizes the Collateral Agent to attach each Pledge Agreement Supplement to this Pledge Agreement and agrees that all shares, partnership interests and equity interests listed on any Pledge Agreement Supplement delivered to the Collateral Agent shall for all purposes hereunder constitute Pledged Securities. In connection therewith, the Pledgor agrees to deliver promptly to the Collateral Agent a revised Exhibit 1 listing the Issuers subject thereto, and a revised Exhibit 2 listing the securities of such additional subsidiary subject thereto. In addition, for the convenience of the parties, the Pledgor shall, upon any change in the nature, amount or description of the Pledged Securities in accordance with the provisions of this Pledge Agreements but which is not so subjectAgreement, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Collateral Agent such amendments to the relevant Pledge Agreements a revised Exhibit 1 or such other documents Exhibit 2, as the Administrative Agent case may be, listing the Pledged Securities subject hereto. Exhibit 1 and Exhibit 2 hereto shall deem necessary or advisable to grant to be deemed amended and restated by such revised exhibit; provided, however, that the Administrative Agent, for the benefit failure of the Lenders, a Lien on Pledgor to deliver such Capital Stock, (ii) take all actions necessary revised exhibits or advisable of the Collateral Agent to cause distribute or attach any such Lien revised exhibits shall not affect the security interest purported to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.granted hereby;
Appears in 1 contract
Additional Collateral. (a) With respect to any Capital Stock of any newly new Subsidiary (other than a Shell Subsidiary so long as it qualifies as such) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but Borrowers or any of their respective Subsidiaries (which is not so subjectshall be deemed to have occurred in the event that any Non-Recourse Subsidiary ceases to qualify as such), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on perfected first priority security interest in the Equity Interests and intercompany obligations of such Capital Stocknew Subsidiary that are held by any of the Borrowers or any of their respective Subsidiaries (limited, in the case of Equity Interests of any Foreign Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign Subsidiary), (iib) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock deliver to the Administrative Agent the certificates, if any, representing such Equity Interests, and any intercompany notes evidencing such obligations, together with undated stock powers and endorsements, in blank, executed in blank thereforand delivered by a duly authorized officer of the applicable Borrower or such Subsidiary, as the case may be, and (iiic) if requested by except in the Administrative Agent case of a Foreign Subsidiary or the Required Lendersan Excluded Acquired Subsidiary (until it ceases to qualify as such), deliver to the Administrative Agent legal opinions relating to the matters described in clauses cause such new Subsidiary (i) to become a party to the Guarantee and Collateral Agreement and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a Lien upon perfected first priority security interest in the Capital Stock of any Immaterial Subsidiary.
(b) With Collateral described in the Guarantee and Collateral Agreement with respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to Subsidiary, including the Subsidiary Pledge Agreement and filing of Uniform Commercial Code financing statements in such jurisdictions as may be required by the Subsidiary Guarantee and (ii) if Collateral Agreement or by law or as may be requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (a) With respect to In the event that any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be Credit Party acquires a Material Real Estate Asset and such interest has not otherwise been made subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and Collateral Documents in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative favor of Collateral Agent, for the benefit of Secured Parties, then such Credit Party shall promptly, but in no event later than thirty (30) days following the Lendersacquisition of such Material Real Estate Asset, take all such actions and execute and deliver, or cause to be executed and delivered, all such mortgages, documents, instruments, agreements, opinions and certificates, including those which are similar to those described in Sections 3.1(e), 3.1(f), 3.1(g) and 3.1(i) with respect to each such Material Real Estate Asset that Collateral Agent shall reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority Lien on such Material Real Estate Assets (or if a Lien on any such Capital StockReal Estate Asset cannot be provided, (ii) take all actions necessary or advisable to cause such a First Priority perfected Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such on the Capital Stock to of the Administrative Agent together with undated stock powers executed Subsidiary that owns a direct interest in blank therefor, and (iii) such Real Estate Asset; provided that if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingsuch Subsidiary is a Foreign Subsidiary, the Borrower Domestic Subsidiary owning such Foreign Subsidiary (directly or through other Foreign Subsidiaries) shall not be required to grant to the Administrative Agent a First Priority perfected Lien upon on the Capital Stock of any Immaterial such directly-owned Foreign Subsidiary.
, which Lien shall be limited to (bA) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary 66% of the Borrower, promptly (and in any event within 30 days after voting Capital Stock of such Person becomes a Subsidiary): (i) cause such new Foreign Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (iiB) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary 100% of the Borrower non-voting Capital Stock of such Subsidiary), in each case, subject to Permitted Liens; provided that neither Parent nor any other Credit Party shall be required to execute a Subsidiary Guarantee provide or Subsidiary Pledge Agreementcause to be provided such additional Collateral (or Guarantees pursuant to Section 5.8) if (i) at the time of acquisition of such Material Real Estate Asset or Capital Stock, and no more than 65% of the Capital Stock of applicable Minimum Equity Value Ratio has been satisfied or equity interests in (ii) any Foreign Subsidiary of the Borrower existing Contractual Obligations assumed or entered into by Parent or any of its Subsidiaries if more than 65% of such Subsidiary to effectuate or reasonably facilitate the assets acquisition of such Subsidiary are securities of foreign companies Material Real Estate Assets (such determination including Contractual Obligations governing non-Wholly Owned Subsidiaries or Joint Ventures and Indebtedness permitted to be made on incurred pursuant to Section 6.1) prohibits the basis granting of fair market value), shall be required to be pledged hereundersuch Lien.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (General Growth Properties, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly created Promptly upon the acquisition or acquired Subsidiary receipt by the Issuer or any newly issued Capital Stock Guarantor of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): After-Acquired Property:
(i) execute the Issuer or the applicable Guarantor, as the case may be, and deliver the Collateral Agent will, if necessary, (A) enter into such amendments or supplements to the Administrative Agent such amendments to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall deem necessary additional Collateral Documents (in each case in registrable or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) recordable form if requested by the Administrative Trustee), and cause such amendments and supplements to be filed and recorded in all such governmental offices as shall be necessary in order to grant and create a valid and perfected Lien on and Security Interest in such After-Acquired Property in favor of the Collateral Agent (subject to no Liens except Permitted Liens) and (B) cause appropriate financing statements to be filed in such governmental offices as shall be reasonably necessary in order to perfect any security interest in such After-Acquired Property as to which a security interest may, under the UCC of the applicable jurisdiction, be perfected by the filing of a financing statement;
(ii) the Issuer or the Required Lendersapplicable Guarantor, as the case may be, shall also deliver to the Administrative Agent legal opinions relating Trustee the following:
(A) an Opinion of Counsel either (a) substantially to the matters described effect that, in the opinion of such counsel, the applicable Collateral Documents, financing statements and all other instruments of further assurance or assignment have been properly recorded and filed so as to make effective and perfect the Security Interests in such After-Acquired Property and reciting the details of such action or (b) to the effect that, in the opinion of such counsel, no such action is necessary to perfect the Security Interests in such After-Acquired Property; and
(B) evidence of payment to be made by the Issuer or the applicable Guarantor of all filing fees, recording and registration charges, transfer taxes and other costs and expenses including reasonable legal fees and disbursements of counsel for the Trustee (and any local counsel) that may be incurred to validly and effectively subject such property to the Lien of the Collateral Documents and to perfect such Lien.
(iii) in connection with the deliveries made pursuant to clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingof this Section 10.01(b), the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent Issuer or the Required Lenders, applicable Guarantor shall deliver to the Administrative Agent legal opinions relating Trustee an Opinion of Counsel and an Officers' Certificate to the matters described effect that the documents that have been or are therewith delivered to the Trustee pursuant to this Section 10.01(b) (including any amendments, supplements or other Collateral Documents referred to in clause (i) immediately preceding, which opinions shall be above) conform in form and substance, and from counsel, reasonably satisfactory all material respects to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary requirements of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderthis Indenture.
Appears in 1 contract
Sources: Indenture (Umt Holdings Lp)
Additional Collateral. (a) With respect to any Capital Stock Each of any newly created or acquired Subsidiary or any newly issued Capital Stock Additional Obligor and Borrower hereby unconditionally and absolutely assigns, transfers and sets over unto Lender all of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject Additional Obligor’s and Borrower’s right, title and interest in and to the Lien created by any Additional Collateral, it being intended that this assignment be an absolute assignment from Additional Obligor and Borrower to Lender and not merely the granting of a security interest. Until the occurrence of an Event of Default which remains uncured, Additional Obligor and Borrower may retain, use and enjoy the benefits of the Pledge Agreements but which is not so subjectAdditional Collateral. Upon the occurrence and during the continuance of an Event of Default, promptly (and the license described in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agentpreceding sentence shall, for the benefit of the Lendersupon Lender’s written election, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforrevoked, and Lender may elect to exercise any and all of Lender’s rights and remedies hereunder; provided, however, that upon Lender’s acceptance of Additional Obligor’s and/or Borrower’s cure or Lender’s waiver of such Event of Default (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingprovided that no other Event of Default is continuing), the license granted to Additional Obligor and Borrower pursuant to this clause (a) shall not automatically be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryreinstated.
(b) With Subject to applicable Legal Requirements, each of Additional Obligor and Borrower hereby irrevocably constitutes and appoints Lender (and any of its officers) as the true and lawful agent and attorney-in-fact (with full powers of substitution) for Additional Obligor and/or Borrower, to, during the continuance of an Event of Default, demand, receive and enforce Additional Obligor’s and/or Borrower’s rights with respect to the Additional Collateral, to give appropriate receipts, releases, and satisfactions for and on behalf of Additional Obligor and/or Borrower and to do any Person thatand all acts in the name, subsequent place, and stead of Additional Obligor and/or Borrower or in the name of Lender with the same force and effect as Additional Obligor and/or Borrower could do if the foregoing assignment had not been made. The power-of-attorney granted in this clause (b) is deemed to be a power coupled with an interest and shall not terminate until the Original Closing Date, becomes a direct expiration or indirect Subsidiary termination of the Borrowerforegoing assignment.
(c) Each of Additional Obligor and Borrower shall remain liable to, promptly (and shall, perform all of its material obligations under the Additional Collateral. Additional Obligor and Borrower shall, at their sole cost and expense, enforce the Additional Collateral in a commercially reasonable manner and comply with all of its material obligations under the Additional Collateral. Each of Additional Obligor and Borrower shall give Lender notice of any default by any party under the Additional Collateral, in any event within 30 days after such Person becomes case, which is likely to result in a Subsidiary): Material Adverse Effect. So long as (i) cause such new Subsidiary to become a party to each of Additional Obligor and Borrower is acting in the Subsidiary Pledge Agreement and the Subsidiary Guarantee ordinary course of business, and (ii) if requested by no Event of Default has occurred and is continuing, except as otherwise provided in the Administrative Agent Loan Documents, each of Additional Obligor and Borrower may alter, amend, extend, modify, change, cancel or terminate any of the Required LendersAdditional Collateral, deliver provided that such alterations, amendments, extensions, modifications, changes, cancellations and terminations, taken as a whole, are not likely to the Administrative Agent legal opinions relating to the matters described result in clause a Material Adverse Effect. So long as (i) immediately preceding, which opinions shall be each of Additional Obligor and Borrower is acting in form and substancethe ordinary course of business, and from counsel(ii) no Event of Default has occurred and is continuing, reasonably satisfactory to except as otherwise provided in the Administrative Agent. Notwithstanding other Loan Documents, Additional Obligor and Borrower may enter into new Additional Collateral on commercially reasonable terms without Lender’s prior written consent in each instance in accordance with the foregoing, no Immaterial Subsidiary or Foreign Subsidiary terms and provisions of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderLoan Documents.
Appears in 1 contract
Sources: Loan Agreement (Retail Value Inc.)
Additional Collateral. Unless a Collateral Release Event shall have occurred:
(a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Effective Date by the Borrower or any of its Subsidiaries Subsidiary Guarantor that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than any assets described in subsection 7.10 or paragraph (b), (c) or (d) of this subsection), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Collateral Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Collateral Agent a Lien on such Capital Stockassets, (ii) take all actions reasonably deemed necessary or advisable by the Collateral Agent to cause such Lien to be duly perfected (to the extent contemplated therein and in the other Loan Documents) in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing jurisdictions as may be requested by the Collateral Agent (it being agreed that no action shall be required pursuant to this clause (ii) to perfect a Lien (1) in assets that would not constitute UCC Filing Collateral or (2) in assets constituting UCC Filing Collateral if such Capital Stock perfection relates to the Administrative Agent together assets constituting UCC Filing Collateral with undated stock powers executed in blank thereforan aggregate book value of less than $1,000,000), and (iii) with respect to assets constituting UCC Filing Collateral with a book value in excess of $1,000,000 that are perfected under the laws of any jurisdiction, if requested by the Administrative Agent or the Required LendersCollateral Agent, deliver to the Administrative Collateral Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Effective Date, becomes a direct Domestic Subsidiary (other than a Credit Card Subsidiary) promptly: (i) execute and deliver to the Collateral Agent a new pledge agreement or indirect such amendments to the relevant Pledge Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Collateral Agent a Lien on the Capital Stock of such Domestic Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrowerpledgor thereof, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (iiii) cause such new Domestic Subsidiary (A) to become a party to the Subsidiary Pledge Agreement Subsidiaries Guarantee and the Subsidiary Guarantee Subsidiaries Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Collateral Agent, and (iiB) to take all actions reasonably deemed necessary or advisable by the Collateral Agent to cause the Lien created by the Subsidiaries Security Agreement to be duly perfected (to the extent contemplated therein and in the other Loan Documents) in accordance with all applicable Requirements of Law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by the Collateral Agent (it being agreed that no action shall be required pursuant to this clause (iii) to perfect a Lien in assets that would not constitute UCC Filing Collateral or in assets constituting UCC Filing Collateral if such perfection relates to assets constituting UCC Filing Collateral with an aggregate book value of less than $1,000,000) and (iv) with respect to assets of any such Domestic Subsidiary with a book value in excess of $1,000,000 that are perfected under the laws of any jurisdiction, if requested by the Administrative Agent or the Required LendersCollateral Agent, deliver to the Administrative Collateral Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(c) With respect to any Person that, subsequent to the Effective Date, becomes a Foreign Subsidiary with a net worth in excess of $1,000,000, promptly upon the request of the Administrative Agent. Notwithstanding : (i) execute and deliver to the foregoing, no Immaterial Collateral Agent a new pledge agreement or such amendments to the relevant Pledge Agreement as the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent a Lien on the Capital Stock of such Subsidiary or Foreign Subsidiary of which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests any such Subsidiary be required to be so pledged) and (ii) deliver to the Collateral Agent any certificates representing such Capital Stock, together with undated stock powers executed and delivered in any Foreign Subsidiary blank by a duly authorized officer of the Borrower or any of its Subsidiaries if more than 65% such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the assets jurisdiction of organization of such Foreign Subsidiary are securities as may be necessary or advisable to perfect such Lien on such Capital Stock.
(d) If the Borrower or any Subsidiary Guarantor shall acquire any Investment Securities (other than Investment Securities of foreign companies any issuer aggregating less than $1,000,000) prior to the occurrence of a Collateral Release Event, such Loan Party shall deliver certificates representing such Investment Securities to the Administrative Agent or its agent or custodian (or otherwise "transfer" such determination Investment Security (within the meaning of the applicable Uniform Commercial Code) to be made on the basis of fair market value), Collateral Agent or its agent or custodian (or take such other action as shall be required to perfect the security interest of the Collateral in accordance with the applicable Uniform Commercial Code)), together with, when necessary or appropriate, undated powers as provided in Section 2(b) of the Pledge Agreement, to be pledged hereunderheld by the Collateral Agent (or its agent or custodian) as Pledged Securities, subject to the terms of the Pledge Agreement, as collateral security for the Secured Obligations.
Appears in 1 contract
Additional Collateral. (a) With respect to In the event that, after the execution and delivery of the Pledge Agreement, (i) the Borrower or any Capital Stock of Restricted Subsidiary shall form or acquire any newly created or acquired new Restricted Subsidiary or shall acquire any newly issued Capital Stock of ownership interest in any existing Subsidiary acquired after the Original Closing Date by other Person which is an Affiliate (including any Person in which the Borrower or any of its Restricted Subsidiaries has an Investment on the date hereof that is intended to becomes a Restricted Subsidiary or an Affiliate) or (ii) additional shares of capital stock or other equity interests shall be subject issued by any Restricted Subsidiary or Affiliate to the Lien created by Borrower or any Restricted Subsidiary, then at the request of the Administrative Agent, the Borrower agrees to deliver, and agrees to cause the Restricted Subsidiary (if any) holding the shares of capital stock or other equity interests of such new Restricted Subsidiary or Affiliate to become a party as a pledgor to the Pledge Agreements but which is Agreement (if not so subjectthen a party thereto) and to deliver, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments pursuant to the relevant Pledge Agreements Agreement the certificates evidencing the shares of stock or equity interests of such new Restricted Subsidiary or Affiliate or such additional shares of stock or equity interests, as the case may be, in each case accompanied by undated stock or transfer powers executed in blank and to take such other documents action (including, without limitation, execution and delivery of an amendment to the Pledge Agreement or any annex thereto in form and substance satisfactory to the Administrative Agent), as the Administrative Agent shall deem necessary request to perfect the security interest created therein pursuant to the Pledge Agreement.
(b) Within 30 days after the execution and delivery by the Borrower of the long-haul capacity agreement publicly announced on April 2, 1998 with Qwest Communications International Inc. (but in no event earlier than the Closing Date), the Borrower shall execute and deliver in favor of the Administrative Agent a security agreement (or advisable an amendment to grant the Pledge Agreement) in form and substance satisfactory to the Administrative Agent, Agent pursuant to which the Borrower will create a first priority perfected security interest in the Borrower's rights in such agreement for the benefit of the Lenders, a Lien on and take such Capital Stockother action (including, (ii) take all actions necessary or advisable without limitation, the filing of Uniform Commercial Code financing statements and using reasonable efforts to cause the counterparty to such Lien agreement to be duly perfected in accordance with all applicable Requirements of Law, including delivering all execute a consent and acknowledgment to such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be security interest in form and substance, and from counsel, reasonably substance satisfactory to the Administrative Agent. Notwithstanding the foregoing), the Borrower shall not be required to grant to as the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryshall request to perfect such security interest.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (Verio Inc)
Additional Collateral. (a) With respect to any Capital Stock Real Property of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended Subsidiary, whether now owned or acquired after the date hereof, the Borrower or such Subsidiary shall, promptly upon request therefor by the Agent, grant or cause to be subject granted to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Mortgage Lien on such Capital Stock, (ii) take all actions necessary any or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to Real Property, upon terms substantially the Administrative Agent together with undated stock powers executed same as those set forth in blank thereforthe Mortgages, and (iii) if such other terms as may be reasonably requested by the Administrative Agent or the Required Lenders, deliver with respect to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substanceparticular collateral, and from counselsubject only to those types of Liens permitted by Section 6.01; provided, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoinghowever, the that -------- ------- neither Borrower nor any Subsidiary shall not be required to grant to a Mortgage Lien on any such Real Property if the Administrative Agent granting of such Mortgage Lien would conflict with or constitute a default under any document or instrument creating a Lien upon permitted by Section 6.01(d). The Borrower, at its own expense, shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, and thereafter cause to be registered, filed or recorded, in each appropriate governmental office, any document or instrument deemed by the Capital Stock Lender to be necessary or desirable for the creation and perfection of any Immaterial Subsidiarythe foregoing Liens and shall pay all taxes and fees related to such registration, filing or recording.
(b) With respect to Upon the creation or acquisition of any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the BorrowerBorrower after the date hereof, promptly (and in any event within 30 days after such Person becomes a Subsidiary): the Borrower shall immediately (i) cause such new Subsidiary to become a party pledge to the Agent for the benefit of the Lenders all of the issued and outstanding Capital Stock of such Subsidiary Pledge Agreement pursuant to a pledge agreement in form and substance satisfactory to the Subsidiary Guarantee Agent, and (ii) if requested by the Administrative Agent or the Required Lenders, cause each such Subsidiary to execute and deliver to the Administrative Agent legal opinions relating for the benefit of the Lenders the Subsidiary Guaranty, the Subsidiary Security Agreement and such other Collateral Documents as the Agent may request; provided, however, that the Agent -------- ------- hereby agrees to subordinate such Subsidiary's obligations under the matters described Subsidiary Guaranty to such Subsidiary's obligations with respect to any Permitted Seller Indebtedness incurred in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, connection with the acquisition of such Subsidiary on customary terms reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing.
(c) Subject to Section 5.09(a) and (b), no Immaterial Subsidiary or Foreign Subsidiary upon consummation of any Investment in excess of $100,000, the Borrower shall be required pledge such Investment to execute a Subsidiary Guarantee or Subsidiary Pledge Agreementthe Agent for the benefit of the Lenders as additional Collateral, and no more than 65% shall take any and all action necessary to perfect and protect the lien or security interest created thereby. Third Amended and Restated Senior Secured Credit Agreement
(d) Notwithstanding the foregoing provisions of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower this Section 5.09 or any other provision hereof, unless the Agent shall specifically waive this Section 5.09(d) in writing, all additional collateral consisting of its Subsidiaries if more than 65% of Real Property in California shall secure only the assets of such Subsidiary are securities of foreign companies (such determination to be made on Specified Mortgage Loan Obligations and all other additional collateral shall secure the basis of fair market value), shall be required to be pledged hereunderSenior Secured Obligations.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Cb Commercial Real Estate Services Group Inc)
Additional Collateral. Directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose of (whether in one or a series of transactions) any Additional Collateral unless (a) With respect all Obligations have been indefeasibly paid in full, in cash; (b) the proceeds of such transfer or sale are sufficient to any Capital Stock indefeasibly pay in full, in cash, all Obligations, and the provisions of any newly created the applicable transfer documents require proceeds of such transfer or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended sale to be applied, and such proceeds, in fact, are applied, to the indefeasible payment in full, in cash, of such Obligations upon closing of such transfer or sale; or (c) twenty-one (21) days prior written notice of the sale has been provided to Lender, Lender has the right to submit to the Plan Administrator an overbid for such assets by means of a credit bid (subject to a carve- out from the Lien in favor of Lender pursuant to Section 7.16.2 of the Plan of Liquidation), of all or a portion of the Obligations, and Lender is provided the ability to submit to the Plan Administrator a written objection to such sale. In the event that ▇▇▇▇▇▇ submits to the Plan Administrator a written objection to such sale, Borrower shall not consummate such sale until (i) the Plan Administrator has filed a motion with the Bankruptcy Court, pursuant to sections 363(b), (f) and (k) of the Bankruptcy Code, seeking authority to sell such assets free and clear of Liens (which motion shall not be heard on less than twenty-one (21) days notice to Lender and other parties in interest and shall expressly acknowledge Lender’s right to credit bid at such sale, subject to the Lien created by any carve-out provided in Section 7.16.2 of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit Plan of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (iLiquidation) and (ii) immediately precedingthe Bankruptcy Court shall have entered an order (a “Section 363 Order”) authorizing and approving such sale. Under no circumstances shall any sale of the Additional Collateral extinguish or discharge the Lien in favor of ▇▇▇▇▇▇, which opinions shall be either in form full or in part, without ▇▇▇▇▇▇’s written consent and substance, and from counsel, reasonably satisfactory release of such Lien (to the Administrative Agent. Notwithstanding extent that such Lien encumbers the foregoing, property proposed to be sold) or the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested entry by the Administrative Agent or Bankruptcy Court of a Section 363 Order providing for the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form extinguishment and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets discharge of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderLien.
Appears in 1 contract
Sources: Loan and Security Agreement
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets (other than assets having a de minimis value) acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (y) any assets described in paragraph (b) or (c) of this subsection 7.10 and (z) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) if requested by the Lender, execute and deliver to the Administrative Agent Lender such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall Lender may deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Lender a Lien on such Capital Stockassets, (ii) if requested by the Lender, take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforLender, and (iii) if requested by the Administrative Agent or the Required LendersLender, deliver to the Administrative Agent Lender legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial SubsidiaryLender.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the BorrowerSubsidiary, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to a Subsidiaries Security Agreement pursuant to documentation which is in form and substance satisfactory to the Subsidiary Pledge Agreement and the Subsidiary Guarantee Lender and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent Lender legal opinions relating to due authorization, execution, delivery of such Subsidiaries Security Agreement by such new Subsidiary and the matters described in clause (i) immediately precedingenforceability against it of such Subsidiaries Security Agreement, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding Lender.
(c) With respect to any Person that, subsequent to the foregoingClosing Date, no Immaterial becomes a Subsidiary, promptly (i) cause such new Subsidiary to become a party to a Subsidiaries Guarantee pursuant to documentation which is in form and substance satisfactory to the Lender and (ii) deliver to the Lender legal opinions relating to due authorization, execution, delivery of such Subsidiaries Guarantee by such new Subsidiary and the enforceability against it of such Subsidiaries Guarantee, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Lender.
(d) With respect to any Person that, subsequent to the Closing Date, becomes a Subsidiary, promptly cause such new Subsidiary to (i) execute and deliver to the Lender a new stock pledge agreement or Foreign Subsidiary such amendments to the relevant Stock Pledge Agreement as the Lender shall deem necessary or reasonably advisable to grant to the Lender, for the benefit of the Borrower shall be required to execute Lender, a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of Lien on the Capital Stock of or equity interests in any Foreign such Subsidiary of which is owned by the Borrower or any of its Subsidiaries if more than 65% Subsidiaries, (ii) deliver to the Lender the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the assets of Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary are securities of foreign companies (such determination to take all actions necessary or advisable to cause the Lien created by the relevant Subsidiary Security Agreement to be made on duly perfected in accordance with all applicable Requirements of Law, including, without limitation, the basis filing of fair market value), shall financing statements in such jurisdictions as may be required requested by the Lender and (iv) deliver to be pledged hereunder.the Lender legal opinions relating to the matters described in clauses
Appears in 1 contract
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity) to any become a “Subsidiary Guarantor” and a “Grantor” under the Guarantee and Collateral Agreement and, after the occurrence of the Ratings Event, each other relevant Security Document, (ii) cause the Capital Stock of such Wholly Owned Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or a Subsidiary thereof), no Capital Stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Subsidiary Guarantor, and then the amount of voting stock of such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to 65% of the outstanding shares of voting stock of such Subsidiary, (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge, (C) if the pledge of the Capital Stock of any newly created such Wholly Owned Subsidiary would result in a violation of any laws, regulations or acquired Subsidiary or orders of any newly issued Governmental Authority, no shares of the Capital Stock of any existing such Subsidiary acquired after shall be pledged) and (D) no Capital Stock of SPX International e.G., a cooperative association established under the Original Closing Date by laws of Germany, shall be pledged and (iii) except in the case of a Foreign Subsidiary (or a Subsidiary thereof) or a Receivables Entity, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower or any of and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Parent Borrower and its Subsidiaries of such compliance is intended excessive in relation to the value of the collateral security to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectafforded thereby.
(b) Promptly, promptly (and in any event within 30 60 days after (or such longer period as is reasonably acceptable to the acquisition thereof): Administrative Agent), following the first date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is “Ba2” or less (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is “BB” or less (or not rated by S&P) (such date, the “Ratings Event”), the Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents, in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a security interest in all property of such Person (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding (A) all other real property (whether owned or leased) and leaseholds, (B) Capital Stock not required to be pledged pursuant to Section 5.11(a), (C) assets for which the pledge thereof or grant, or perfection, of a Lien on such Capital Stockthereon would result in a default, breach or other violation or right of termination under then existing Contractual Obligations or laws, regulations or orders of any Governmental Authority, (D) titled vehicles, (E) any intellectual property to the extent a security interest therein is not perfected by filing a UCC financing statement or, in respect of registered intellectual property, a filing in the USPTO (if required) or the U.S. Copyright Office, (F) any intellectual property if the grant, or perfection, of a security interest therein shall constitute or result in (i) the abandonment, invalidation or rendering unenforceable of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein, (ii) take all actions necessary the breach or advisable termination pursuant to cause the terms of, or a default under, any intellectual property or (iii) the violation of any applicable law, (G) any general intangible if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such General Intangible, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder or (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (H) any lease, license, contract, property rights or agreement to which any Grantor (as defined in the Guarantee and Collateral Agreement) is a party or any of its rights or interests thereunder if the grant, or perfection, of a security interest therein (i) shall violate any applicable law or be prohibited by any contract, agreement, instrument or indenture governing such lease, license, contract, property rights or agreement, (ii) would give any other party to such contract, agreement, instrument or indenture the right to terminate its obligations thereunder, (iii) is permitted only with the consent of another party to such contract, if such consent has not been obtained, (iv) shall constitute or result in the abandonment, invalidation or unenforceability of any right, title or interest of any Grantor (as defined in the Guarantee and Collateral Agreement) therein or (v) shall constitute or result in a breach or termination pursuant to the terms of, or a default under, any such lease, license, contract, property rights or agreement; provided in any such case the prohibition is not rendered ineffective by the UCC (including the provisions of Section 9-407 and 9-408) or other applicable laws, (I) any Exempt Deposit Accounts and (J) those other assets that are, in the reasonable judgment of the Administrative Agent, customarily excluded from security documents) that is not already subject to a perfected first priority Lien to be duly perfected (except as permitted by Section 6.3) in accordance with all applicable Requirements favor of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank thereforand (ii) take, and (iii) if cause the relevant 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Required LendersParent Borrower and its Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) If, deliver as of any Collateral Date following the Ratings Event, any property of the Parent Borrower, any Subsidiary Guarantor that is a “Grantor” under any Security Document or any Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) is not already subject to a perfected first priority Lien (except to the same extent as not required pursuant to Section 5.11(b) or as permitted by Section 6.3) in favor of the Administrative Agent, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(c) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequences to the Parent Borrower and its Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(d) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, prior to the occurrence of the Ratings Event, no property other than Capital Stock (subject to the exceptions specified in Section 5.11(a)) shall be required to become Collateral.
(e) Promptly, and in any event within 60 days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first date after the Release Date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is “Ba2” or less (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is “BB” or less (or not rated by S&P), the Parent Borrower shall (i) execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoing, the Parent Borrower and each Subsidiary Guarantor shall not be required to grant to the Administrative Agent Agent, for the benefit of the Lenders, a Lien upon security interest in all property (and types of property) of such Person that constituted Collateral under the Guarantee and Collateral Agreement as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock of any Immaterial Subsidiary.
(bnot required to be pledged pursuant to Section 5.11(a)) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if take, and cause the relevant 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 Section 5.12, all at the expense of the Loan Parties.
(f) Notwithstanding anything to the contrary in this Section 5.11 or the Required Lendersany other Loan Document, deliver to the Administrative Agent legal opinions and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any purported Liens on): (i) the assets transferred to a Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction”) transferred, or in respect of which security interests are granted, pursuant to a Qualified Receivables Transaction or a European Securitization, (iii) if the documentation relating to the matters described in clause (i) immediately precedingReceivables sale, factoring or securitization to which opinions shall be in form and substancesuch Receivables Entity is a party expressly prohibits such a Lien, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock or debt (whether or not represented by promissory notes) of or equity interests in any Foreign Subsidiary of issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries if more than 65% Subsidiaries, in each case in connection with a Qualified Receivables Transaction permitted by Section 6.6(c) and (iv) Capital Stock not required to be pledged pursuant to Section 5.11(a), (b) or (c). Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, neither the Parent Borrower nor any of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), Guarantors shall be required to take any action to perfect the security interest of the Administrative Agent in the Collateral other than (i) filing UCC financing statements, (ii) delivering Capital Stock required to be pledged hereunderpursuant to Sections 5.11(a), (b) and (c), (iii) executing, delivering, filing and recording mortgages with respect to owned real property in which a security interest is required to be granted pursuant to this Section 5.11 and (iv) executing, delivering, filing and recording notices of grants of security interest with the United States Patent Office and/or United States Copyright Office.
(g) Notwithstanding anything herein to the contrary, no Foreign Subsidiary (or any Subsidiary thereof) shall, or shall be deemed to, guarantee any Borrowing by the Parent Borrower, and no assets of any Foreign Subsidiary (or Subsidiary thereof) shall be given as security for such Borrowing. This provision is meant to prevent any inclusions pursuant to Section 956 of the Code and shall be interpreted in accordance therewith.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Additional Collateral. (a) With respect to any Capital Stock In connection with each redetermination of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by Borrowing Base, the Borrower or any shall review the Reserve Report and the list of current Mortgaged Properties (as described in Section 8.12(d)) to ascertain whether the Mortgaged Properties represent at least the Minimum Collateral Amount after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties do not represent at least the Minimum Collateral Amount, then the Borrower shall, and shall cause its Restricted Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectto, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver grant to the Administrative Agent as security for the Obligations a first-priority Lien interest (subject only to Permitted Prior Liens) on additional Oil and Gas Properties not already subject to a Lien of the Security Instruments such amendments that after giving effect thereto, the Mortgaged Properties will represent at least the Minimum Collateral Amount. All such Liens will be created and perfected by and in accordance with the provisions of mortgages, deeds of trust, security agreements and financing statements or other Security Instruments, all in form and substance satisfactory to the relevant Pledge Agreements Administrative Agent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes.
(b) In addition, from time to time prior to the Second Lien Termination Date, the Borrower will, at its cost and expense, secure the Obligations by pledging or creating, or causing to be pledged or created, perfected security interests with respect to such of its assets and properties as the Administrative Agent or the Majority Lenders shall designate within 30 days of such designation (or such later date as the Administrative Agent may agree (it being understood that it is the intent of the parties that the Obligations shall be secured by substantially all the assets of the Borrower and its Restricted Subsidiaries (including real and other properties acquired subsequent to the Effective Date) subject to the limitations herein); provided that, neither the Borrower nor any Restricted Subsidiary shall be required to take additional action with respect to assets not required to be pledged as collateral for the obligations under the Second Lien Term Loan Agreement, assets specifically excluded from Collateral in the Security Instruments and assets which in the reasonable judgment of the Administrative Agent are of de minimis value or for which the cost of obtaining a perfected security interest outweighs the value thereof. Such security interests and Liens will be created under the Security Instruments and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to the Administrative Agent, and the Borrower shall deliver or cause to be delivered to the Administrative Agent all such instruments and documents (including legal opinions and lien searches but excluding title insurance) as the Administrative Agent shall deem necessary or advisable reasonably request within such thirty-day period to grant evidence compliance with this Section. The Borrower agrees to the Administrative Agent, for the benefit of the Lenders, a Lien on provide such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to evidence as the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver shall reasonably request as to the Administrative Agent legal opinions relating to the matters described in clauses (i) perfection and (ii) immediately preceding, which opinions shall be in form priority status of each such security interest and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial SubsidiaryLien.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. The Company and each Guarantor shall grant to the Collateral Trustee a first priority security interest in all Shared Collateral (a) With respect subject to any Capital Stock Permitted Liens), whether owned on the date hereof or hereafter acquired, and shall execute and deliver all documents and shall take all actions reasonably necessary to perfect and protect such security interest in favor of the Collateral Trustee (including, without limitation, the delivery of any newly created applicable foreign pledge, control agreement, mortgage, title insurance policy, title survey, evidence of flood insurance or acquired Subsidiary legal opinion), subject to the terms of the Intercreditor Agreement (if then in effect) and the applicable Security Documents. In the event that the Company or any newly issued Capital Stock of Guarantor acquires any existing Subsidiary acquired after the Original Closing Date interest in real property having a fair market value (as reasonably determined by the Borrower or any Company) of its Subsidiaries that is intended to be more than $500,000 in the aggregate and such interest has not otherwise been made subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and Security Documents in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agentfavor of Collateral Trustee, for the benefit of the LendersHolders of Notes and the holders of other Shared Lien Obligations (if any), then the Company or such Guarantor, as applicable, shall use commercially reasonable efforts to, within 60 days (or, in the case of real property located outside of the ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ days) after such acquisition, take all such actions and execute and deliver, or cause to be executed and delivered, all such customary mortgages, documents, instruments, agreements, opinions, title insurance policies, title surveys, evidence of flood insurance and certificates or, to the extent that any Priority Lien Obligations are incurred, substantially similar to such mortgages, documents, instruments, agreements, opinions, title insurance policies, title surveys, evidence of floor insurance and certificates as are executed and/or delivered to the Priority Lien Collateral Agent (or such other representative of the holders of Priority Lien Obligations) in connection with the incurrence of such Priority Lien Obligations or otherwise, to create in favor of the Collateral Trustee, for the benefit of the Holders of Notes and the holders of other Shared Lien Obligations (if any), a Lien on valid and, subject to any filing and/or recording required in connection therewith, perfected first priority security interest (subject, in the case of priority only, to Permitted Liens) in such Capital Stock, (ii) take all actions necessary or advisable interest in real property. In addition to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower Company and each Guarantor shall not be required to grant deliver to the Administrative Agent a Lien upon the Capital Stock Collateral Trustee such appraisals as are required by law or regulation of any Immaterial Subsidiary.
(b) With interest in real property with respect to which the Collateral Trustee has been granted a Lien. Notwithstanding anything to the contrary hereunder, no action needs to be taken hereunder with respect to any Person that, subsequent to Collateral (or any asset of a Guarantor that would constitute Collateral if such action were taken) if the Original Closing Date, becomes a direct or indirect Subsidiary Board of Directors of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement Company and the Subsidiary Guarantee and (ii) if requested by Priority Lien Collateral Agent determine in good faith that the Administrative Agent or cost to effectuate such perfected Liens shall exceed the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets value of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderCollateral.
Appears in 1 contract
Sources: Indenture (Viasystems Group Inc)
Additional Collateral. (a) With respect to any Capital Stock of assets (other --------------------- than (x) any newly created assets described in subsection 6.10(b), (y) immaterial assets a Lien on which cannot be perfected by physical delivery to the Administrative Agent or by filing UCC-1 financing statements, and (z) assets constituting interests in real property, which are governed by subsection 6.10(c)) acquired Subsidiary on or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Restricted Subsidiaries that is intended to be (including, without limitation, the Capital Stock of newly created or acquired Restricted Subsidiaries) which are not already subject to the Lien created by any of the Pledge Agreements but which is not so subjectSecurity Documents, promptly (and in any event within 30 thirty (30) days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Agents and the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock including, without limitation, the delivery of the applicable assets to the Administrative Agent together with undated stock powers executed or the filing of financing statements in blank thereforsuch jurisdictions as may be requested by the Administrative Agent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingof this subsection 6.10(a), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) With respect to any Person that, on or subsequent to the Closing Date, (x) becomes a direct or indirect Restricted Subsidiary (other than any Acquired Subsidiary (for which the ten (10) day time periods set forth below do not apply)), (y) ceases to be a Foreign Subsidiary but retains its Restricted Subsidiary status, or (z) ceases to be an Unrestricted Subsidiary but retains its, or otherwise qualifies hereunder for, Subsidiary status, as applicable (except, in each case, with respect to the execution and delivery of any Mortgages, the timing of the execution and delivery of which is governed by subsection 6.10(c)(vi) below): (i) no later than ten (10) days after the date such Person becomes such a Subsidiary, execute and deliver to the Administrative Agent, for the benefit of the Agents and the Lenders, such amendments to the Guarantee and Collateral Agreement as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Agents and the Lenders, a Lien on the Capital Stock of such Restricted Subsidiary which is owned by the Borrower or any of its Restricted Subsidiaries, (ii) no later than ten (10) days after the date such Person becomes such a Subsidiary, deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Restricted Subsidiary, as the case may be, (iii) cause such Restricted Subsidiary (A) no later than ten (10) days after the date such Person becomes such a Subsidiary, to become a party to the Guarantee and Collateral Agreement, and the Subordination Agreement, in each case pursuant to documentation which is in form and substance reasonably satisfactory to the Administrative Agent and (B) no later than thirty (30) days after the date such Person becomes such a Subsidiary, to take all actions necessary or advisable to cause each Lien created by the Guarantee and Collateral Agreement to be duly perfected in accordance with and pursuant to all applicable Requirements of Law, including, without limitation, the filing of fixture filings and financing statements in such jurisdictions as may be requested by the Administrative Agent, and (iv) within thirty (30) days of the date such Person becomes such a Subsidiary, if requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i), (ii) and (iii) of this subsection 6.10(b), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b1) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary the Guarantee or Subsidiary Pledge and Collateral Agreement, and (2) no more than 65% of the Capital Stock of or equity interests in any direct Foreign Subsidiary of the Borrower or any of its Subsidiaries (and none of the Capital Stock of or equity interests in any indirect Foreign Subsidiary), or any other of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder, (3) no Unrestricted Subsidiary shall be required to become a party to the Guarantee and Collateral Agreement or deliver any Mortgages with respect to any of its real properties and (4) the Capital Stock of Unrestricted Subsidiaries pledged to the Administrative Agent pursuant to the Guarantee and Collateral Agreement shall be released as provided in subsection 8.16 thereof.
(c) As promptly as practicable, but in any event:
(i) within sixty (60) days following the Closing Date or, with respect to clause (C) only, within sixty (60) days following the Administrative Agent's election of a Title Policy or a Title Opinion, the Borrower, at its sole cost and expense, shall have delivered to the Administrative Agent (A) a Mortgage with respect to each of the real property interests described in Part I of Schedule 6.10, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy (as defined in subsection 6.10(d)) or a Title Opinion (as defined in subsection 6.10(d)), to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded;
(ii) within ninety (90) days following the Closing Date, or, with respect to clause (C) only, within ninety (90) days following the Administrative Agent's election of a Title Policy or a Title Opinion, the Borrower, at its sole cost and expense, shall have delivered to the Administrative Agent, (A) a Mortgage with respect to each of the real property interests described in Part II of Schedule 6.10, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy or a Title Opinion, to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded;
(iii) within one hundred fifty (150) days following the Closing Date or, with respect to clause (C) only, within one hundred fifty (150) days following the Administrative Agent's election of a Title Policy or a Title Opinion, the Borrower, at its sole cost and expense, shall have delivered to the Administrative Agent, (A) a Mortgage with respect to the each of the real property interests described in Part III of Schedule 6.10, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy or a Title Opinion, to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded;
(iv) commencing on the Closing Date and continuing thereafter for a period of one (1) year (or such longer period as may be reasonably requested by the Administrative Agent (after taking into account such factors as the overall value of the Collateral package granted to the Lenders, the Borrower's financial performance to date and the prospects of obtaining such Mortgages within a reasonable period of time)), the Borrower at its sole cost and expense shall use commercially reasonable efforts to deliver to the Administrative Agent, (A) a Mortgage with respect to each of the real property interests described in Part IV of Schedule 6.10, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy or a Title Opinion, to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded;
(v) within thirty (30) days (or, with respect to clause (C) only, within written thirty (30) days following the Administrative Agent's election of a Title Policy or Title Opinion) following the acquisition (by purchase, lease, or other means) of any real property interests by the Borrower or any Restricted Subsidiary on or after the Closing Date, the Borrower or such Restricted Subsidiary, as applicable, at its sole cost and expense, shall have delivered to the Administrative Agent (A) a Mortgage with respect to each such real property interest covering each newly acquired parcel or parcels of real property (provided that such real property interest (x) if comprised of more than one parcel, consists of contiguous parcels, (y) comprises a "logical mining unit," or (z) is otherwise mortgageable in the reasonable opinion of the Administrative Agent) which contain(s) (collectively, if more than one parcel) at least five (5) million tons of reasonably proven (by industry standards) coal reserves, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy or a Title Opinion, to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded, but shall ultimately be subject to the Administrative Agent's obligation to maximize Lenders' security with respect to such Mortgage; provided, however, that notwithstanding the foregoing in this clause 6.10(c)(v), with respect to the securing of any leasehold interest by a Mortgage, the Borrower or its Restricted Subsidiary, as applicable, shall only be required to use its commercially reasonable efforts to deliver such Mortgage for such a period of time as is reasonably required to deliver such Mortgage or for the Administrative Agent to determine with reasonable certainty that, notwithstanding such efforts, such Mortgage cannot be delivered;
(vi) within sixty (60) days following the date on which any Person (other than any Acquired Subsidiary) becomes a Restricted Subsidiary, or ceases to be a Foreign Subsidiary but retains its Restricted Subsidiary status, or ceases to be an Unrestricted Subsidiary but retains its, or otherwise qualifies hereunder for Subsidiary status or, with respect to clause (C) only within sixty (60) days following the Administrative Agent's election of a Title Policy or a Title Opinion, the Borrower at its sole cost and expense shall have delivered or caused to be delivered to the Administrative Agent with respect to each such Person (A) a Mortgage with respect to each real property interest owned by such Person covering each parcel or parcels of real property (provided that such real property interest (x) if comprised of more than one parcel, consists of contiguous parcels, (y) comprises a "logical mining unit," or (z) is otherwise mortgageable in the reasonable opinion of the Administrative Agent) which contain(s) (collectively, if more than one parcel) at least five (5) million tons of reasonably proven (by industry standards) coal reserves, executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (B) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which such Mortgage is to be recorded, reasonably satisfactory to the Administrative Agent, including, without limitation, an opinion that such Mortgage is a legal, valid and binding instrument, enforceable according to its terms, and (C) either a Title Policy or a Title Opinion, to be selected by the Administrative Agent in its reasonable discretion, the exercise of which shall take into account industry practices in the area in which such Mortgage is to be recorded; provided, however, that notwithstanding the foregoing in this clause 6.10(c)(vi), with respect to the securing of any leasehold interest by a Mortgage, the Borrower or its Restricted Subsidiary, as applicable, shall only be required to use its commercially reasonable efforts to deliver such Mortgage for such a period of time as is reasonably required to deliver such Mortgage or for the Administrative Agent to determine with reasonable certainty that, notwithstanding such efforts, such Mortgage cannot be delivered; and,
(vii) at all times after the Borrower and its Restricted Subsidiaries have recognized, collectively, an asset "impairment loss" (as such term is contemplated by and pursuant to F.A.S. 121 ("Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed of")) (or more than one such asset impairment loss) totaling in the aggregate Fifty Million Dollars ($50,000,000.00) or more, no later than thirty (30) days after each such recognition after recognition in excess of such initial $50,000,000, the Borrower at its sole cost and expense shall have delivered or caused to be delivered to the Administrative Agent (i) one or more Mortgages with respect to real property interests owned by Borrower or any of its Restricted Subsidiaries which (A) are not already subject to any Mortgage, (B) which have been selected by the Administrative Agent in its sole and absolute discretion, and (C) have a total value (as reasonably determined by the Administrative Agent) at least equal to the dollar value of such "impairment loss" recognition, such Mortgages in each case to be executed and delivered by a duly authorized officer of the mortgagor party thereto, with a counterpart or a conformed copy for each Lender, (ii) a legal opinion in form and substance, and from counsel licensed to practice in the jurisdiction in which each such Mortgage is to be recorded, reasonably satisfactory to the Administrative
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Additional Collateral. (a) With respect to any Capital Stock of any newly created or assets acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired --------------------- after the Original Closing Date by the Borrower or any of its Domestic Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than (x) any assets described in paragraph (b) or (c) of this subsection and (y) immaterial assets a Lien on which cannot be perfected by filing UCC-1 financing statements), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent Lender such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent Lender shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersLender, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be requested by the Administrative Agent together with undated stock powers executed in blank thereforLender, and (iii) if requested by the Administrative Agent or the Required LendersLender, deliver to the Administrative Agent Lender legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial SubsidiaryLender.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary Domestic Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Lender: (i) execute and deliver to the Lender, a supplement to the Guarantee and Collateral Agreement in form and substance reasonably satisfactory to the Lender to grant to the Lender, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Lender the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and Collateral Agreement, in each case pursuant to documentation which is in form and substance reasonably satisfactory to the Lender and (iiB) to take all actions necessary or advisable to cause the Lien created by such Guarantee and Collateral Agreement 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 requested by the Lender and (iv) if requested by the Administrative Agent or the Required LendersLender, deliver to the Administrative Agent Lender legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding Lender.
(c) With respect to any Person that, subsequent to the foregoingClosing Date, no Immaterial Subsidiary or becomes a Foreign Subsidiary Subsidiary, promptly upon the request of the Lender: (i) execute and deliver to the Lender a supplement to the Guarantee and Collateral Agreement in form and substance reasonably satisfactory to the Lender, to grant to the Lender, a Lien on the Capital Stock of such Subsidiary which is owned by the Borrower or any of its Subsidiaries (provided that in no event shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of any such Subsidiary be required to be so pledged), (ii) deliver to the Lender any certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or equity interests in any such Subsidiary, as the case may be, and take or cause to be taken all such other actions under the law of the jurisdiction of organization of such Foreign Subsidiary as may be necessary or advisable to perfect such Lien on such Capital Stock and (iii) if requested by the Lender, deliver to the Lender legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Lender.
(d) With respect to any Investment in a Joint Venture, promptly upon the request of the Lender: (i) execute and deliver to the Lender, a supplement to the Guarantee and Collateral Agreement in form and substance reasonably satisfactory to the Lender to grant to the Lender, a Lien on the Capital Stock of the Joint Venture relating to such Investment which is owned by the Borrower or any of its Subsidiaries Subsidiaries, (ii) deliver to the Lender the certificates representing such Capital Stock (if more than 65% any), together with undated stock powers executed and delivered in blank by a duly authorized officer of the assets of Borrower or such Subsidiary are securities of foreign companies (such determination Subsidiary, as the case may be, and take or cause to be made taken all such other actions under applicable law as may be necessary or advisable to perfect such Lien on such Capital Stock and (iii) if requested by the basis of fair market value)Lender, deliver to the Lender legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be required in form and substance, and from counsel, reasonably satisfactory to be pledged hereunderthe Lender.
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Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary; provided that if an Immaterial Subsidiary ceases to be an Immaterial Subsidiary, Borrower or the applicable Subsidiary, as the case may be, shall within thirty (30) days of such event comply with the foregoing requirements."
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Guarantee and, to the extent such Subsidiary holds any Capital Stock of any Subsidiary that is not an Immaterial Subsidiary, to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary, Foreign Subsidiary or Foreign TCAS Subsidiary (except as provided below) of the Borrower or its Subsidiaries shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the total combined voting power of the Capital Stock of or equity interests in (A) any direct or indirect Foreign Subsidiary of the Borrower or (B) any direct or indirect Subsidiary of its Subsidiaries the Borrower if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), and no Subsidiary of any Person described in clause (A) or (B), shall be required to be pledged hereunder; provided, that if, after the consummation of any sale of a portion of Capital Stock of the TCAS Subsidiary, the TCAS Subsidiary thereafter becomes a Wholly Owned Subsidiary, then the TCAS Subsidiary shall become a party to the Subsidiary Guarantee and Subsidiary Pledge Agreement and Borrower shall promptly (and in any event within 30 days after such event occurs) comply with the requirements of this subsection 6.10(b) with respect to the TCAS Subsidiary."
Appears in 1 contract
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) cause such Subsidiary (unless it is a Foreign Subsidiary or a Receivables Entity) to any become a “Subsidiary Guarantor” under the Guarantee and Collateral Agreement, (ii) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary or a Receivables Entity) to become a “Grantor” under each relevant Collateral Agreement, (iii) cause the Capital Stock of any newly created or acquired such Wholly Owned Subsidiary or any newly issued to be pledged pursuant to the relevant Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary, no Capital Stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Domestic Subsidiary, and then the amount of voting stock of such Subsidiary to be pledged pursuant to such Collateral Agreement may be limited to 66% of the outstanding shares of voting stock of such Subsidiary, and (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock of such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge) and (iv) except in the case of a Foreign Subsidiary or a Receivables Entity, take all steps required by the relevant Security Documents and this Agreement to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(b) If, as of any existing Collateral Date, any property of the Parent Borrower, any Subsidiary acquired Guarantor that is a “Grantor” under any Collateral Agreement or any Subsidiary that is required to become a “Grantor” pursuant to Section 5.11(a) (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding all other real property) is not already subject to a perfected first priority Lien (except as permitted by Section 6.3) in favor of the Administrative Agent or the Collateral Agent, as the case may be, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, after the Original Closing Date Release Date, no property other than Capital Stock shall be required to become Collateral.
(d) Notwithstanding anything to the contrary in this Section 5.11 or any other Loan Document, the Administrative Agent and the Lenders shall not have Liens on (and shall, at the request and expense of the Parent Borrower, timely release any Liens on): (i) the assets transferred to a Receivables Entity and assets of such Receivables Entity, (ii) the Receivables and related assets (of the type specified in the definition of “Qualified Receivables Transaction” or “European Receivables Securitization”, as applicable) transferred, or in respect of which security interests are granted, pursuant to a Qualified Receivables Transaction or a European Receivables Securitization and (iii) if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such a Lien, the Capital Stock or debt (whether or not represented by promissory notes) of or issued by a Receivables Entity to the Parent Borrower or any of its Subsidiaries that is intended to be subject to the Lien created Subsidiaries, in each case in connection with a Qualified Receivables Transaction or a European Receivables Securitization, as applicable, permitted by any of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial SubsidiarySection 6.6(c).
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
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Sources: Credit Agreement (SPX Corp)
Additional Collateral. (a) With Subject to this Section 5.8, with respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary property acquired after the Original Closing Date by the Borrower or any of its Subsidiaries Debtor that is intended to be subject to the Lien created by any of the Pledge Agreements Security Documents or the Final Order but which is not so subjectsubject (but in any event excluding any assets described in the last sentence of paragraph (b) of this Section 5.8), the Borrower shall promptly give written notice of the same to the Administrative Agent and, if requested by the Administrative Agent or the Required Lenders, the Debtors shall promptly (and in any event within 30 ten (10) days after following written the acquisition thereof): request by the Administrative Agent or the Required Lenders) (i) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent or the Required Lenders shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the LendersSecured Parties, a Lien on such Capital Stockproperty having the priority specified in the Final Order, and (ii) to the extent not already created and/or perfected, take all actions necessary or advisable to cause such Lien to be duly perfected to the extent required by such Security Document or the Final Order and not already perfected in accordance with all applicable Requirements of Law, including delivering all the filing of financing statements in such original certificates evidencing jurisdictions as may be reasonably requested by the Administrative Agent or the Required Lenders. The Debtors shall otherwise take such Capital Stock actions and execute and/or deliver to the Administrative Agent together with undated stock powers executed in blank thereforsuch documents as the Administrative Agent or the Required Lenders shall reasonably require to confirm the validity, perfection and priority of the Lien under the Final Order or the Security Documents against such after-acquired properties.
(iiib) With respect to any Person that is or becomes a Subsidiary after the Closing Date, the Borrower shall promptly give written notice of the same to the Administrative Agent and, if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions Debtors shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 ten (10) days after following written the request by the Administrative Agent or the Required Lenders) (A) deliver to Administrative Agent the certificates, if any, representing all of the Equity Interests of such Person becomes Subsidiary that are owned by any Debtor, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a Subsidiary): duly authorized officer of such Debtor, and all intercompany notes owing from such Subsidiary to any Debtor together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Debtor, (iB) cause such new Subsidiary to the extent not already created and/or perfected, to take all actions reasonably necessary or advisable in the opinion of the Administrative Agent or the Required Lenders to cause the Lien created by the applicable Security Document to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Required Lenders, and (c) cause such new Subsidiary to become a party to the Subsidiary Pledge this Agreement as a “Debtor” and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder“Guarantor”.
Appears in 1 contract
Additional Collateral. (a) With respect to (i) any Capital Stock of Equity Interests held by any newly created Borrower or any Subsidiary Guarantor in any newly-formed or acquired Subsidiary or any newly issued Capital Stock (other than an Excluded Pledge Subsidiary) of any existing Subsidiary the Operating Partnership that is acquired after the Original Closing Restatement Effective Date by and (ii) all Equity Interests of a Subsidiary of the Borrower or any of its Subsidiaries Operating Partnership that is intended ceases to be subject to an Excluded Pledge Subsidiary after the Lien created by any of the Pledge Agreements but which is not so subjectRestatement Effective Date, promptly (and in any event within 30 45 days (or such longer period as the Administrative Agent shall agree in writing) after the acquisition thereof): thereof or the date on which such Subsidiary ceases to be an Excluded Pledge Subsidiary, as applicable) (iA) execute and deliver to the Administrative Agent such amendments or supplements to the relevant Pledge Agreements Collateral Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for its benefit and for the benefit of the Lendersother Secured Parties, a Lien on such Capital Stockproperty or Equity Interests subject to no Liens other than Permitted Equity Encumbrances, and (iiB) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements Laws, including, without limitation, the delivery of Lawthe certificates, including delivering all such original certificates evidencing such Capital Stock if any, representing any Equity Interests to be included in the Administrative Agent Collateral (together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank therefor, by a duly authorized officer of the holder(s) of such Equity Interests) and (iii) if the filing of financing statements in such jurisdictions as may be reasonably requested by the Administrative Agent or the Required Lenders, Agent. Each Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to such documents as the Administrative Agent a Lien upon shall reasonably require to confirm the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person thatvalidity, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary perfection and priority of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Lien of the Borrower shall be required to execute a Subsidiary Guarantee Collateral Documents on any such properties or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderEquity Interests.
Appears in 1 contract
Sources: Credit Agreement (American Residential Properties, Inc.)
Additional Collateral. (a) With respect to any Capital Stock Upon the existence of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectcircumstances described in this Section, the Parent, Borrowers and the Restricted Subsidiaries shall promptly (and in any event within 30 days after ten Business Days following the acquisition thereof): (i) request of the Administrative Agent execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents additional Collateral Documents as may be requested by the Administrative Agent shall deem necessary or advisable (to the extent relevant, substantially in the form of any existing Collateral Documents), as may be reasonably required by the Administrative Agent to grant and perfect Liens in favor of the Administrative Agent on the related Property:
(a) Prior to the Commencement of any Substantial Project, a Deed of Trust with respect thereto, together with such title insurance as may be requested by the Administrative Agent, provided that this clause (a) shall not apply to Real Property associated with Native American projects;
(b) Upon any other parcel of Real Property (not otherwise covered by a Deed of Trust) generating Adjusted EBITDA in any fiscal year in excess of $10,000,000, a Deed of Trust with respect thereto, together with such title insurance as may be reasonably requested by the Administrative Agent;
(c) Substantially concurrently with the creation of any deposit, brokerage or other similar account by Parent, enter into a control agreement, in form and substance acceptable to the Administrative Agent, with respect thereto;
(d) Promptly upon obtaining all Gaming Board or other Governmental Agency approval required for the benefit of the Lendersany Parent, Borrower or Sibling Guarantor to pledge its Equity Interests in any gaming licensee which is a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock Restricted Subsidiary to the Administrative Agent together to secure the Obligations pursuant to the Second Amended and Restated Pledge Agreement (which Parent agrees to use its best efforts to obtain), deliver all certificates with undated respect to such Equity Interests to the Administrative Agent;
(e) Promptly following the Closing Date, deposit account control agreements, in form and substance acceptable to the Administrative Agent, with respect to each deposit or brokerage account identified on Schedule 4.21 which is not established with the Administrative Agent; and
(f) Promptly and in any event within 180 days following the Closing Date, obtain all necessary approvals of Gaming Boards to the delivery of the stock powers executed of each Subsidiary of Parent which is a Nevada gaming licensee, it being understood that pending such approvals no Lien shall be created in blank thereforsuch shares. Concurrently with the execution and delivery of any such Collateral Documents, Parent, the Borrowers and (iii) if requested by the Restricted Subsidiaries shall provide to the Administrative Agent such appraisals, environmental reports, surveys, opinions, abstracts of title or other assurances as the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions Requisite Lenders may reasonably request provided that no title insurance shall be required in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock respect of any Immaterial Subsidiary.
parcel of real property hereinafter acquired unless such real property is either (a) associated with a Substantial Project, or (b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary generates annual EBITDA which is in excess of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder$10,000,000.
Appears in 1 contract
Sources: Loan Agreement (Station Casinos Inc)
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and, promptly after such Collateral Date, will, (i) in the case of each such Wholly Owned Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is an Excluded Subsidiary) to become a “Subsidiary Guarantor” and, to the extent that Collateral is required to be pledged pursuant to this Agreement, a “Grantor” under the Guarantee and Collateral Agreement, and, to the extent that Collateral is required to be pledged pursuant to this Agreement, to become a party to each other relevant Security Document, (ii) to the extent that Collateral is required to be pledged pursuant to this Agreement, cause the Capital Stock in such Wholly Owned Subsidiary (unless it is an Unrestricted Subsidiary) to be pledged pursuant to the Guarantee and Collateral Agreement (except that, (A) if such Subsidiary is a Foreign Subsidiary (or a Subsidiary thereof), no Capital Stock in such Subsidiary shall be pledged, unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Subsidiary Guarantor, and then, the amount of voting stock in such Subsidiary to be pledged pursuant to the Guarantee and Collateral Agreement shall be limited to sixty-five percent (65.0%) of the outstanding shares of voting stock in such Subsidiary, (B) if such Subsidiary is a Receivables Entity, no shares of Capital Stock in such Subsidiary shall be pledged if the documentation relating to the Receivables sale, factoring or securitization to which such Receivables Entity is a party expressly prohibits such pledge, (C) if the pledge of the Capital Stock in any such Wholly Owned Subsidiary would result in a violation of any applicable Laws or orders of any Governmental Authority, no shares of the Capital Stock in such Subsidiary shall be pledged, (D) (I) neither the Parent Borrower nor any Subsidiary Guarantor shall be required to pledge any Capital Stock in Ballantyne Holding Company, and, (II) for the avoidance of doubt, SPX ▇▇▇▇▇ UK Limited shall not be required to be a “Grantor” under the Guarantee and Collateral Agreement or become a party to any other Security Document, (E) Capital Stock shall not be required to be pledged to the extent that the Guarantee and Collateral Agreement expressly provides that such Capital Stock is not required to be pledged, and (F) no Capital Stock in any Subsidiary that is not a Material Subsidiary shall be required to be pledged (notwithstanding anything set forth in the Guarantee and Collateral Agreement), so long as the aggregate assets of all such Subsidiaries whose Capital Stock is not pledged as Collateral pursuant to this clause (a)(ii)(F) does not exceed $40,000,000 when taken together for all such Subsidiaries (excluding the assets of any newly created or acquired Subsidiary or any newly issued the Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any of the Pledge Agreements but in which is not so subjectrequired to be pledged pursuant to the foregoing clauses (a)(ii)(A) through (a)(ii)(E)) on an aggregate basis, promptly and (iii) to the extent that Collateral is required to be pledged pursuant to this Agreement, except in the case of an Excluded Subsidiary, take all steps required pursuant to this Section 5.11, Section 5.12 and the relevant Security Documents to create and perfect Liens in any event within 30 days after the acquisition thereof): relevant property of such Subsidiary; provided, that, the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this clause (a) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(b) The Parent Borrower shall (i) execute and deliver deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent such amendments security documents (including the Security Agreement and Mortgages for each Mortgaged Property), in form and substance reasonably satisfactory to the relevant Pledge Agreements or such other documents as Administrative Agent, pursuant to which the Administrative Agent Parent Borrower and each Subsidiary Guarantor shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lendersholders of the Obligations, a Lien on security interest in all property of such Capital StockPerson (excluding any Excluded Property), and (ii) take all take, and cause the relevant Restricted Subsidiaries to take, such actions as shall be necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if reasonably requested by the Administrative Agent to grant and perfect such Liens, including actions described in Section 5.12, all at the expense of the Loan Parties; provided, that, the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this clause (b) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequence to the Required LendersParent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) To the extent that Collateral is required to be pledged pursuant to this Agreement, deliver if, as of any Collateral Date, any property of the Parent Borrower, any Subsidiary Guarantor that is party to any Security Document or any Restricted Subsidiary that is required to become a party to any Security Document pursuant to clauses (a) or (b) above is not already subject to a perfected first priority Lien (except to the same extent as not required pursuant to clause (b) above or as permitted by Section 6.3) in favor of the Administrative Agent, for the benefit of the holders of the Obligations, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant Restricted 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 Section 5.12, all at the expense of the Loan Parties; provided, that, the Parent Borrower and its Restricted Subsidiaries shall not be required to comply with the requirements of this clause (c) if the Administrative Agent, in its sole discretion, determines that the cost or other negative consequences to the Parent Borrower and its Restricted Subsidiaries of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(d) Promptly, and, in any event, within sixty (60) calendar days (or such longer period as is reasonably acceptable to the Administrative Agent), following the first (1st) date after the Release Date on which the corporate family rating of the Parent Borrower from ▇▇▇▇▇’▇ is less than “Baa3” (or not rated by Moody’s) and the corporate credit rating of the Parent Borrower from S&P is less than “BBB-” (or not rated by S&P), the Parent Borrower shall: (i) execute and deliver, and cause each Subsidiary Guarantor to execute and deliver, to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingsecurity documents, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , pursuant to which the foregoing, the Parent Borrower and each Subsidiary Guarantor shall not be required to grant to the Administrative Agent Agent, for the benefit of the holders of the Obligations, a security interest in all property (and types of property) of such Person that constituted Collateral under the Security Documents as in effect immediately prior to the Release Date (and, for the avoidance of doubt, shall not include Capital Stock not required to be pledged pursuant to clause (a) above or other assets not required to be subjected to a Lien upon the Capital Stock of any Immaterial Subsidiary.
pursuant to clause (b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee above); and (ii) if take, and cause the relevant Restricted Subsidiaries to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or to grant and perfect such Liens, including actions described in Section 5.12, all at the Required Lenders, deliver expense of the Loan Parties.
(e) Notwithstanding anything to the Administrative Agent legal opinions relating to contrary in this Section 5.11 or any other Loan Document, neither the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Parent Borrower nor any of the Borrower Subsidiary Guarantors shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% take any action to perfect the security interest of the Administrative Agent in the Collateral, other than: (i) filing UCC financing statements; (ii) delivering Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderpursuant to the foregoing clauses (a), (b) and (c) (including stock powers endorsed in blank or other appropriate instruments of transfer); (iii) executing, delivering, filing and recording mortgages with respect to owned real property in which a security interest is required to be granted pursuant to this Section 5.11; and (iv) executing, delivering, filing and recording notices of grants of security interest with the United States Patent Office and/or United States Copyright Office. For the avoidance of doubt, perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements, including deposit accounts, securities accounts and commodities accounts (other than control of Capital Stock required to be pledged pursuant to the foregoing clauses (a), (b) and (c)).
(f) Notwithstanding anything herein to the contrary, no Foreign Subsidiary (or any Subsidiary thereof) shall, or shall be deemed to, guarantee any Borrowing by the Parent Borrower, and no assets of any Foreign Subsidiary (or Subsidiary thereof) shall be given as security for such Borrowing. This provision is meant to prevent any inclusions pursuant to Section 956 of the Code and shall be interpreted in accordance therewith.
Appears in 1 contract
Sources: Credit Agreement (SPX FLOW, Inc.)
Additional Collateral. (a) With respect to any Capital Stock of any newly new Subsidiary (other than a Shell Subsidiary so long as it qualifies as such) created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Restatement 61 56 Effective Date by the Borrower or any of its Subsidiaries (which shall be deemed to have occurred in the event that is intended any Non-Recourse Subsidiary ceases to be subject to the Lien created by any of the Pledge Agreements but which is not so subjectqualify as such), promptly (and in any event within 30 days after the acquisition thereof): (ia) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents Guarantee and Collateral Agreement as the Administrative Agent shall deem deems necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected first priority security interest in accordance with all applicable Requirements the Equity Interests and intercompany obligations of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested that are held by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65(limited, in the case of Equity Interests of any Foreign Subsidiary, to 66% of the assets total outstanding Equity Interests of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valueForeign Subsidiary), shall (b) deliver to the Administrative Agent the certificates, if any, representing such Equity Interests, and any intercompany notes evidencing such obligations, together with undated stock powers and endorsements, in blank, executed and delivered by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, and (c) except in the case of a Foreign Subsidiary or an Excluded Acquired Subsidiary (until it ceases to qualify as such), cause such new Subsidiary (i) to become a party to the Guarantee and Collateral Agreement and (ii) to take such actions necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code financing statements in such jurisdictions as may be required to by the Guarantee and Collateral Agreement or by law or as may be pledged hereunderrequested by the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Charter Communications Holdings Capital Corp)
Additional Collateral. (a) With respect In connection with the delivery of each Reserve Report, the Borrower shall deliver a list of current Mortgaged Properties (as described in Section 5.12(d)) to any Capital Stock ascertain whether the Mortgaged Properties represent at least the Minimum Collateral Amount after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties do not represent at least the Minimum Collateral Amount, then within 30 days thereafter (or such later date as the Collateral Agent may agree in its reasonable discretion) the Borrower shall, or shall cause a Restricted Subsidiary to, grant to the Collateral Agent as security for the Obligations a perfected security interest and lien (subject in priority only to Permitted Prior Liens) on additional Oil and Gas Properties not already subject to a Lien of any newly the Security Instruments such that after giving effect thereto, the Mortgaged Properties will represent at least the Minimum Collateral Amount. All such Liens will be created and perfected by and in accordance with the provisions of mortgages, deeds of trust, security agreements and financing statements or acquired Subsidiary other Security Instruments, all in form and substance satisfactory to the Administrative Agent and in sufficient executed (and acknowledged where necessary or any newly issued Capital Stock of any existing Subsidiary acquired after appropriate) counterparts for recording purposes.
(b) In the Original Closing Date by event that the Borrower or any of its Subsidiaries that is intended Restricted Subsidiary grants a Lien on any property to be subject to secure any obligations under any First Lien Loan Document, the Lien created by any of the Pledge Agreements but which is not so subjectBorrower will, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent will cause such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to Restricted Subsidiary to, contemporaneously therewith grant to the Administrative Agent, for Collateral Agent to secure the benefit of the Lenders, Obligations a Lien on such Capital Stockthe same property pursuant to Security Instruments in form and substance satisfactory to the Collateral Agent.
(c) In addition, (ii) take all actions necessary from time to time, the Borrower will, at its cost and expense, secure the Obligations by pledging or advisable to cause such Lien creating, or causing to be duly pledged or created, perfected in accordance security interests with all applicable Requirements respect to such of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, its assets and (iii) if requested by properties as the Administrative Agent or the Required Lenders, deliver to Lenders shall designate within 30 days of such designation (or such later date as the Administrative Collateral Agent legal opinions relating to may agree (it being understood that it is the matters described in clauses (i) and (ii) immediately preceding, which opinions intent of the parties that the Obligations shall be in form and substance, and from counsel, reasonably satisfactory to secured by substantially all the Administrative Agent. Notwithstanding the foregoing, assets of the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
and its Restricted Subsidiaries (b) With respect to any Person that, including real and other properties acquired subsequent to the Original Closing Date)); provided that, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of neither the Borrower nor any Restricted Subsidiary shall be required to execute take additional action with respect to assets specifically excluded from Collateral in the Security Instruments and assets which in the reasonable judgment of the Administrative Agent are of de minimis value or for which the cost of obtaining a Subsidiary Guarantee or Subsidiary Pledge Agreementperfected security interest outweighs the value thereof. Such security interests and Liens will be created under the Security Instruments and other security agreements, mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to the Collateral Agent, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower shall deliver or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination cause to be made on delivered to the basis Collateral Agent all such instruments and documents (including legal opinions and lien searches but excluding title insurance) as the Collateral Agent shall reasonably request within such thirty-day period to evidence compliance with this Section. The Borrower agrees to provide such evidence as the Collateral Agent shall reasonably request as to the perfection and priority status of fair market value), shall be required to be pledged hereundereach such security interest and Lien.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Magnum Hunter Resources Corp)
Additional Collateral. (a) With respect If the Pledgor shall, at any time and from --------------------- time to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired time after the Original Closing Date by date hereof, acquire any additional membership interests in the Borrower or any of its Subsidiaries that is intended to be subject to the Lien created by any Indebtedness of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters types described in clauses (i) and (ii) immediately precedingof SECTION 1, which opinions the same shall be automatically deemed to be Pledged Interests or Pledged Indebtedness, as the case may be, and to be pledged to the Administrative Agent pursuant to SECTION 1, and the Pledgor will forthwith pledge and deposit the same with the Administrative Agent and deliver to the Administrative Agent any certificates or instruments therefor, together with the endorsement of the Pledgor (in the case of any promissory notes or other instruments), undated stock powers (in the case of Pledged Interests evidenced by certificates) or other necessary instruments of transfer or assignment, duly executed in blank and in form and substance, and from counsel, reasonably substance satisfactory to the Administrative Agent. Notwithstanding , together with such other certificates and instruments as the foregoingAdministrative Agent may reasonably request (including Uniform Commercial Code financing statements or appropriate amendments thereto), the Borrower shall not be required to grant and will promptly thereafter deliver to the Administrative Agent a Lien upon fully completed and duly executed amendment to this Agreement in the Capital Stock form of Exhibit A (each, a "Pledge --------- Amendment") in respect thereof. The Pledgor hereby authorizes the Administrative Agent to attach each Pledge Amendment to this Agreement, and agrees that all such Collateral listed on any Immaterial Subsidiary.
(b) With Pledge Amendment shall for all purposes be deemed Collateral hereunder and shall be subject to the provisions hereof; provided that the failure of the Pledgor to execute and deliver any -------- Pledge Amendment with respect to any Person that, subsequent to such additional Collateral as required hereinabove shall not impair the Original Closing Date, becomes a direct or indirect Subsidiary security interest of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent in such Collateral or otherwise adversely affect the Required Lenders, deliver to rights and remedies of the Administrative Agent legal opinions relating to hereunder with respect thereto. If any Pledged Interests (whether now owned or hereafter acquired) are "uncertificated securities" within the matters described in clause (i) immediately precedingmeaning of the applicable Uniform Commercial Code or are otherwise not evidenced by any certificate or instrument, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to each applicable Pledgor will promptly notify the Administrative Agent. Notwithstanding the foregoingAgent thereof and will promptly take and cause to be taken all actions required under applicable law, no Immaterial Subsidiary including, as applicable, under Article 8 or Foreign Subsidiary 9 of the Borrower shall be required applicable Uniform Commercial Code, to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% perfect the security interest of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderAdministrative Agent therein.
Appears in 1 contract
Sources: Pledge and Security Agreement (Petersen Companies Inc)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary Assets (or any newly issued Capital Stock of any existing Subsidiary interest therein) acquired after the Original Closing Date by the any Borrower or any Subsidiary (other than the Excluded Subsidiaries) that are of its Subsidiaries that is intended to be subject to a type covered by the Lien created by any of the Pledge Agreements Loan Documents but which is are not so subject, promptly (and in any event within 30 thirty (30) days after the acquisition thereof): (i) execute and deliver deliver, or cause such Subsidiary (other than the Excluded Subsidiaries) to the Administrative Agent execute and deliver, to Bank such amendments to the relevant Pledge Agreements Loan Documents or such other documents as the Administrative Agent Bank shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, Bank a Lien on such Capital StockAssets (or such interest therein), (ii) take all actions actions, or cause such Subsidiary (other than the Excluded Subsidiaries) to take all actions, necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements law, including, without limitation, the filing of Lawfinancing statements in such jurisdictions as may be requested by Bank, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required LendersBank, deliver to the Administrative Agent Bank legal opinions relating to the matters described in the immediately preceding clauses (i) and (ii) immediately preceding), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoingBank, the Borrower shall not be and (iv) if requested by Bank, deliver to Bank evidence of insurance as required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiaryby Section 6.5.
(b) With respect Without limiting the generality of Section 6.13(a), except as otherwise provided in Section 6.13(c), each Borrower shall pledge to any Person thatBank all of its right, subsequent title and interest in and to the Original Closing Date, becomes Capital Stock of each presently existing and hereafter acquired or formed Subsidiaries (other than Excluded Subsidiaries) pursuant to a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Stock Pledge Agreement, and no more than such Borrower shall take such actions as Bank shall reasonably require to perfect its security interest in all such Capital Stock; provided that Borrowers shall not acquire or form any new Subsidiaries except as otherwise permitted under Section 7.8(b).
(c) Notwithstanding Section 6.13(b), if an Event of Default has occurred or is continuing, Borrowers shall be required, if requested by Bank, to pledge sixty-five percent (65% %) of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunderExcluded Subsidiaries.
Appears in 1 contract
Additional Collateral. (a) With respect On each Collateral Date, the Parent Borrower will notify the Administrative Agent of the identity of any Wholly Owned Subsidiary that is not already a Subsidiary Guarantor and promptly after such Collateral Date will (i) cause such Subsidiary (unless it is a Foreign Subsidiary or a Receivables Entity) to any become a "Subsidiary Guarantor" under the Guarantee and Collateral Agreement, (ii) in the case of each such Subsidiary that is a Material Subsidiary, cause such Subsidiary (unless it is a Foreign Subsidiary or a Receivables Entity) to become a "Grantor" under each relevant Collateral Agreement, (iii) cause the Capital Stock of such Wholly Owned Subsidiary to be pledged pursuant to the relevant Collateral Agreement (except that, if such Subsidiary is a Foreign Subsidiary, no shares of common stock of such Subsidiary shall be pledged unless such Subsidiary is a Material Subsidiary that is directly owned by the Parent Borrower or a Domestic Subsidiary, and then the amount of voting stock of such Subsidiary to be pledged pursuant to such Collateral Agreement may be limited to 66% of the outstanding shares of voting stock of such Subsidiary) and (iv) except in the case of a Foreign Subsidiary, take all steps required by the relevant Security Documents and this Agreement to create and perfect Liens in the relevant property of such Subsidiary; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(a) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(b) If, as of any newly created or acquired Collateral Date, any property of the Parent Borrower, any Subsidiary Guarantor that is a "Grantor" under any Collateral Agreement or any newly issued Subsidiary that is required to become a "Grantor" pursuant to Section 5.11(a) (including any parcel of owned domestic real property having a fair market value in excess of $10,000,000 but excluding all other real property) is not already subject to a perfected first priority Lien (except as permitted by Section 6.3) in favor of the Administrative Agent or the Collateral Agent, as the case may be, the Parent Borrower will notify the Administrative Agent thereof, and, promptly after such Collateral Date, will cause such assets to become subject to a Lien under the relevant Security Documents and will take, and cause the relevant 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 Section 5.12, all at the expense of the Loan Parties; provided that the Parent Borrower and its Subsidiaries shall not be required to comply with the requirements of this Section 5.11(b) if the Administrative Agent, in its sole discretion, determines that the cost of such compliance is excessive in relation to the value of the collateral security to be afforded thereby.
(c) Notwithstanding anything to the contrary in this Section 5.11, after the Release Date, no property other than Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended shall be required to be subject to the Lien created by any of the Pledge Agreements but which is not so subject, promptly become Collateral.
(and in any event within 30 d) Within 75 days after the acquisition thereof): (i) execute and deliver Amendment/Restatement Effective Date, the Parent Borrower shall, to the Administrative Agent such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant extent not previously delivered to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately precedingAgent, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With with respect to any Person thateach Mortgaged Property, subsequent to Endorsements meeting the Original Closing Date, becomes a direct or indirect Subsidiary requirements of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market valueSection 4.1(c), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Credit Agreement (SPX Corp)
Additional Collateral. As soon as practicable following the acquisition by the Issuers or any Subsidiary of any property of the type which constitutes Collateral, to the extent not prohibited by Gaming Authorities or applicable Gaming Laws,
(ai) With the Issuers or the applicable Guarantor, as the case may be, and the Collateral Agent shall enter into such amendments or supplements to the Collateral Documents or such additional Mortgages or Ship Mortgages (in each case in registrable or recordable form) and other Collateral Documents, in each case in accordance with the terms thereof and subject to any exclusions relating to a particular item of Collateral and the Issuers shall cause such amendments, supplements, mortgages and other Collateral Documents to be filed and recorded in all such governmental offices as shall be necessary in order to grant and create a valid Lien on and security interest in such After-Acquired Property in favor of the Collateral Agent (subject to no Liens except Permitted Liens), the Issuers shall cause appropriate financing statements to be filed in such governmental offices as shall be reasonably necessary in order to perfect any security interest in such After-Acquired Property as to which a security interest may, under the UCC of the applicable jurisdiction, be perfected by the filing of a financing statement and, if any such After-Acquired Property consists of stock certificates, promissory notes or other property as to which, under the relevant UCC, a security interest may be perfected by possession or control, deliver such certificates, promissory notes and other property (together with stock powers or assignments duly endorsed in blank), or deliver issuer acknowledgments and control agreements relating to such property in accordance with the provisions of the applicable Collateral Documents to the Collateral Agent;
(ii) in the case of additional Collateral which constitutes Real Property having a Fair Market Value in excess of $1.0 million, each of the Issuers or the applicable Guarantor, as the case may be, shall also deliver to the Collateral Agent the following:
(A) a title insurance policy or an endorsement to an existing title insurance policy, in the American Land Title Insurance Loan Policy Extended Coverage form, or its equivalent, and in an amount at least equal to the purchase price thereof (or, if such property was not purchased or such purchase price cannot be determined by the Issuers, the Fair Market Value thereof), in favor of the Collateral Agent insuring that the Lien of the Collateral Documents or any additional Collateral Documents constitutes a valid and perfected Lien, subject to no Liens except Permitted Liens on such Real Property in an aggregate amount equal to the purchase price or the Fair Market Value, as applicable, of the Real Property and containing such endorsements and other assurances of the type reasonably acceptable to the Trustee, together with an Officers' Certificate stating that any Liens on such Real Property are Liens expressly permitted by this Indenture and the applicable Collateral Documents;
(B) any Opinion of Counsel required pursuant to Section 10.02(b) below;
(C) a Survey with respect to such Real Property;
(D) a policy or certificate of insurance as required by any Capital Stock Mortgage relating to such Real Property, which policy or certificate shall bear mortgagee endorsements of any newly created the character required by Section 10.02 of this Indenture;
(E) evidence of payment or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date a closing statement indicating payments to be made by the Borrower or applicable Guarantor of all title premiums, recording charges, transfer taxes and other costs and expenses including reasonable legal fees and disbursements of counsel for the Trustee (and any of its Subsidiaries local counsel) that is intended may be incurred to be validly and effectively subject such Real Property to the Lien created by of any applicable Collateral Document to perfect such Lien;
(F) copies of all Leases;
(G) an Officers' Certificate of the Pledge Agreements but which Company stating that there has been issued and is in effect a valid and proper certificate of occupancy or local or foreign equivalent, if required by the local or foreign codes or ordinances for the use then being made of such Real Property and that there is not so subjectoutstanding any citation, promptly (and violation or similar notice indicating that such Real Property contains conditions which are not in any event within 30 days after the acquisition thereof): compliance with local or foreign codes or ordinances relating to building or fire safety or structural soundness which materially impairs (i) execute and the ability of such Real Property to be used for its intended purpose or (ii) the value or utility of such Real Property; and
(H) such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as shall be necessary in order for the owner or holder of the fee interest or leasehold interest to grant the Lien contemplated by the Mortgage with respect to such Real Property; provided, that the Company shall only be obligated to use commercially reasonable efforts to obtain the items set forth in this clause (H); and
(iii) The Issuers shall deliver to the Administrative Collateral Agent such amendments an Opinion of Counsel and an Officers' Certificate to the relevant Pledge Agreements effect that the documents that have been or such other documents as the Administrative Agent shall deem necessary or advisable to grant are therewith delivered to the Administrative AgentCollateral Agent pursuant to this Section 10.01(b) (including any amendments, for the benefit of the Lenderssupplements, a Lien on such Capital Stock, (ii) take all actions necessary mortgages or advisable other Collateral Documents referred to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses paragraph (i) and (iiabove) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory conform to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock requirements of any Immaterial Subsidiarythis Indenture.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Sources: Indenture (Trump Indiana Inc)
Additional Collateral. (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary assets acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is are intended to be subject to the Lien created by any of the Pledge Agreements Security Documents but which is are not so subjectsubject (other than any assets described in paragraph (b) or (c) of this subsection and assets that, in the judgment of the Administrative Agent are immaterial or a Lien on which cannot be perfected by filing 57 UCC-1 financing statements or their foreign equivalents), promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent such amendments to the relevant Pledge Agreements Security Documents or such other documents as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stockassets, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all including, without limitation, the filing of financing statements in such original certificates evidencing such Capital Stock to jurisdictions as may be reasonably requested by the Administrative Agent together with undated stock powers executed in blank thereforAgent, and (iii) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary an active Subsidiary, promptly upon the request of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): Administrative Agent: (i) execute and deliver to the Administrative Agent, for the benefit of the Lenders, a new pledge agreement or such amendments to the relevant Pledge Agreement as the Administrative Agent shall reasonably deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on the Capital Stock of such Subsidiary (unless such Subsidiary is a foreign Subsidiary in which case, 66% of the Capital Stock of such foreign subsidiary) which is owned by the Borrower or any of its Subsidiaries, (ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of the Borrower or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Subsidiary Pledge Agreement Guarantee and the Subsidiary Guarantee Security Agreement, in each case pursuant to documentation which is in form and substance satisfactory to the Administrative Agent, and (iiB) to take all actions necessary or advisable to cause the Lien created by the Security Agreement 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 and (iv) if requested by the Administrative Agent or the Required LendersAgent, deliver to the Administrative Agent legal opinions relating to the matters described in clause clauses (i), (ii) and (iii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. (ai) With If: (A) the Borrower acquires any right, title or interest in any Asset other than an Excluded Asset, which Asset does not upon acquisition become subject to the Required Liens, or any Asset other than an Excluded Intercompany Asset is acquired by a non-Borrower Company that has granted Intercompany Liens, which Asset does not upon acquisition become subject to an Intercompany Lien, in each case by virtue of an after-acquired property clause in any then existing Security Document or Intercompany Security Document, (B) the Borrower prepays in full any Prior Mortgage Note applicable to any Hotel Property owned by the Companies and the holder of which Prior Mortgage Note had not previously consented to the granting of the Required Liens and/or Intercompany Liens (regardless of whether such holder has previously consented to the granting of second liens to the Collateral Agent for the benefit of the Senior Lender), or (C) the Senior Lender for any reason elects, in its sole and absolute discretion, to require that any Asset, that theretofore constituted an Excluded Asset or an Excluded Intercompany Asset solely at the election of the Senior Lender, become a part of the Collateral or the Intercompany Collateral, then the Borrower shall and/or shall cause each other Company with any right, title or interest in such Asset to execute, acknowledge and deliver to the Collateral Agent such additional Security Documents or Intercompany Security Documents as are necessary to grant and perfect the Required Lien or Intercompany Lien with respect to any Capital Stock of any newly created such Asset, which Security Documents or acquired Subsidiary Intercompany Security Documents shall be in all material respects consistent in form and substance with the Security Documents or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by Intercompany Security Documents theretofore executed.
(ii) If the Borrower or any of its Subsidiaries the Companies shall acquire one hundred percent (100%) of the ownership or operation of the Hotel Asset located in Milwaukee, Wisconsin, then if requested by the Senior Lender, the Borrower will cooperate with the Senior Lender to restructure the Moorland Debt so that the Indirect Hotel Property located in Milwaukee, Wisconsin shall be direct Collateral for the Loans or, if the ownership is intended to acquired by a Company other than the Borrower, direct Intercompany Collateral for the Intercompany Loans, in each case in substitution for the currently existing pledge of the Moorland Debt. The Borrower's obligations under this paragraph (ii) shall be subject to the Lien created rights of any and all other lenders holding prior Liens secured by any the Hotel Property and to the Companies' ability to grant the Required Liens and the Intercompany Liens in the Asset in compliance with the terms of the Pledge Agreements but which is not so subject, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent Companies agreements with such amendments to the relevant Pledge Agreements or such other documents as the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a Lien on such Capital Stock, (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not be required to grant to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiarythird party lenders.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract
Additional Collateral. Comply with the provisions of this Section regarding any new or additional Collateral. The Account Parties may from time to time add Collateral to the State Street Custodial Accounts without the necessity of executing or delivering any documents pursuant to this Agreement (a) With respect to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired after the Original Closing Date by the Borrower or any of its Subsidiaries that is intended to be but subject to the Lien created provisions of Section 5.02(g)). The Account Parties may from time to time pledge new or additional Collateral contained in Custodial Accounts other than the State Street Custodial Accounts by any of the Pledge Agreements but which is not so subject, promptly (executing and in any event within 30 days after the acquisition thereof): (i) execute and deliver delivering to the Administrative Agent such amendments either a supplement to the relevant Pledge Agreements and Security Agreement in the form attached thereto (in the case of any new Custodial Account maintained with State Street), or such other documents as a new pledge and security agreement (in substantially the Administrative Agent shall deem necessary or advisable to grant to the Administrative Agent, for the benefit form of the LendersPledge and Security Agreement) or other pledge agreement, a Lien on such Capital Stocksecurity agreement or charge (in the case of any new Custodial Account maintained with another Custodian), (ii) take all actions necessary or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Law, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent together with undated stock powers executed in blank therefor, and (iii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clauses (i) and (ii) immediately preceding, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Borrower shall not and by causing to be required to grant executed and delivered to the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct control agreement or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by other Security Documents as the Administrative Agent or the Required Lendersshall reasonably require together with such other documents, deliver certificates and opinions (including opinions as to the validity and perfection of the Administrative Agent legal opinions relating to the matters described in clause (i) immediately precedingAgent's Lien on such Collateral), which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , as the foregoing, no Immaterial Subsidiary or Foreign Subsidiary Administrative Agent may reasonably request in connection therewith; and the applicable Account Parties will take such other action as the Administrative Agent may reasonably request to create in favor of the Borrower shall be required to execute Administrative Agent a Subsidiary Guarantee or Subsidiary Pledge Agreement, perfected security interest in and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made Lien on the basis of fair market value), shall be required Collateral being pledged pursuant to be pledged hereunderthe documents described above.
Appears in 1 contract
Sources: Reimbursement Agreement (Ace LTD)
Additional Collateral. (a) With respect Subject to any Capital Stock of any newly created or acquired Subsidiary or any newly issued Capital Stock of any existing Subsidiary acquired Section 5.11(e), after the Original Closing Date by Date, in the event any Loan Party acquires a fee interest or ground lease in any Real Estate with a fair market value in excess of $5,000,000 or acquires additional fee interests or ground leases in Real Estate such that the aggregate total fair market value of the Real Estate for such Loan Party exceeds $20,000,000, the Borrower shall, or any of its Subsidiaries that is intended to be subject to shall cause the Lien created by any of the Pledge Agreements but which is not so subjectrespective Loan Party to, promptly (and in any event within 30 days after the acquisition thereof): (i) execute and deliver to the Administrative Agent a fully executed Mortgage over such amendments acquired Property in form and substance reasonably satisfactory to the relevant Pledge Agreements or Administrative Agent, together with such title insurance policies, surveys, appraisals, evidence of insurance, legal opinions, environmental assessments and other documents and certificates as shall be reasonably required by the Administrative Agent. To the extent any Loan Party entered into a new lease after the Closing Date for premises which the Borrower reasonably anticipates will contain Collateral (other than fixtures) with an aggregate fair market value in excess of $500,000, the Borrower shall forward, or shall cause to be forwarded, such lease to the Administrative Agent and, if reasonably requested by the Administrative Agent, cause a Collateral Access Agreement or similar landlord waiver and consent, in a form and substance reasonably satisfactory to the Administrative Agent, to be executed by the applicable Loan Party and the applicable landlord for the benefit of the Administrative Agent and the Lender and promptly delivered to the Administrative Agent. Subject to Section 5.11(e), the Borrower shall deem necessary or advisable (i) cause each Person, upon its becoming a Material Subsidiary (provided that this shall not be construed to constitute consent by any of the Lenders to any transaction not expressly permitted by the terms of this Agreement), promptly to guaranty the Obligations, pursuant to Section 5.11, and to grant to the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, a Lien on security interest in the real, personal and mixed Property of such Capital Stock, Person to secure the Obligations and (ii) take all actions necessary pledge, or advisable to cause such Lien to be duly perfected in accordance with all applicable Requirements of Lawpledged, including delivering all such original certificates evidencing such Capital Stock to the Administrative Agent, for the benefit of the Administrative Agent together and the Lenders, all of the Capital Stock of such Material Subsidiary, to secure the Obligations. The documentation for such guaranty, security and pledge shall be substantially similar to the Loan Documents executed concurrently herewith with undated stock powers executed in blank therefor, and (iii) if such modifications as are reasonably requested by the Administrative Agent Agent. Subject to Section 5.11(e), immediately after (i) the Acquisition and the date any of the Target or any of its Subsidiaries, as the Required Lenderscase may be, becomes a Subsidiary Loan Party, the Borrower shall use commercially reasonable efforts to deliver to the Administrative Agent legal opinions relating Agent, with respect to any lease entered into by such Subsidiary Loan Party for premises which the matters described Borrower reasonably anticipates will contain Collateral (other than fixtures) with an aggregate fair market value in clauses (i) excess of $500,000, a landlord waiver and (ii) immediately precedingconsent agreement, which opinions shall be in form and substance, and from counsel, substance reasonably satisfactory to the Administrative Agent. Notwithstanding , executed by the foregoing, applicable landlord and the Borrower shall not be required to grant to applicable lessee for the benefit of the Administrative Agent a Lien upon the Capital Stock of any Immaterial Subsidiary.
(b) With respect to any Person that, subsequent to the Original Closing Date, becomes a direct or indirect Subsidiary of the Borrower, promptly (and in any event within 30 days after such Person becomes a Subsidiary): (i) cause such new Subsidiary to become a party to the Subsidiary Pledge Agreement and the Subsidiary Guarantee and (ii) if requested by the Administrative Agent or the Required Lenders, deliver to the Administrative Agent legal opinions relating to the matters described in clause (i) immediately preceding, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, no Immaterial Subsidiary or Foreign Subsidiary of the Borrower shall be required to execute a Subsidiary Guarantee or Subsidiary Pledge Agreement, and no more than 65% of the Capital Stock of or equity interests in any Foreign Subsidiary of the Borrower or any of its Subsidiaries if more than 65% of the assets of such Subsidiary are securities of foreign companies (such determination to be made on the basis of fair market value), shall be required to be pledged hereunder.
Appears in 1 contract