Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder. (b) The Company or other applicable Obligor shall be permitted to designate as additional Secured Debtholders hereunder each person who is, or who becomes, the registered holder of Parity Lien Debt or the holder of Priority Lien Debt incurred by the Company or such other Obligor after the date of this Agreement in accordance with the terms of the Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company or other applicable Obligor may effect such designation by delivering to the Collateral Trustee, with copies to each previously identified Secured Debt Representative, each of the following: (i) An officer's certificate of the Company stating that: (A) the Company or such other Obligor intends to incur additional Secured Debt ("New Secured Debt") which shall either be (x) Priority Lien Debt permitted by each agreement governing Secured Debt to be secured with a Priority Lien on a pari passu basis with all previously existing Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (y) Parity Lien Debt permitted by each agreement governing Secured Debt to be secured with a Parity Lien on a pari passu basis with all previously existing Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and (B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt Default; (ii) evidence that the Company or such other Obligor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Secured Debt is secured by the Collateral; (iii) evidence that the officer's certificate delivered pursuant to clause (i) above has been duly authorized by the Board of Directors of the Company and has been duly executed and delivered; and (iv) a written notice specifying the name and address of the Secured Debt Representative for such series of New Secured Debt for purposes of Section 7.5. Notwithstanding the foregoing, nothing in this Agreement shall be construed to allow the Company or any other Obligor to incur additional Indebtedness unless otherwise permitted by the terms of the Secured Debt Documents.
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Additional Secured Debt. (a) The Collateral Trustee will, as collateral trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of any Secured Obligations of constituting a Series of Secured Debt that is issued or incurred after the date hereof that if:
(i1) holds such Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b); and
(2) and (ii) signs, through its the designated Secured Debt Representative identified pursuant to Section 3.8(b), ) signs a Collateral Trust JoinderJoinder and delivers the same to the Collateral Trustee. Notwithstanding the foregoing, (x) the incurrence of revolving credit obligations under commitments that have previously been designated as Secured Debt and (y) the issuance of letters of credit and incurrence of reimbursement obligations in respect thereof under commitments that have previously been designated as Secured Debt, shall automatically constitute Secured Debt and shall not require compliance with the procedures set forth in Section 3.8(b).
(b) The Company or other applicable Obligor shall Borrower will be permitted to designate as an additional holder of Secured Debtholders Obligations hereunder each person Person who is, or who becomes, the registered holder of Parity Lien Debt or the holder of Priority Lien Debt incurred by the Company Borrower or such other Obligor any Guarantor after the date of this Agreement in accordance with the terms of the all applicable Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company or other applicable Obligor Borrower may only effect such designation by delivering to the Collateral Trustee, with copies to each previously identified Trustee an Additional Secured Debt Representative, each of the following:
(i) An officer's certificate of the Company stating Designation that:
(A1) states that the Company Borrower or such other Obligor Guarantor intends to incur additional Secured Debt ("New “Additional Secured Debt"”) which shall will either be (xi) Priority Lien Debt permitted not prohibited by each agreement governing any Secured Debt Document to be incurred and secured with by a Priority Lien on a pari passu basis equally and ratably with all previously existing and future Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (yii) Parity Lien Debt permitted not prohibited by each agreement governing any Secured Debt Document to be incurred and secured with a Parity Lien on a pari passu basis equally and ratably with all previously existing and future Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and
(B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt DefaultDebt;
(ii2) evidence specifies the name and address of the Secured Debt Representative for such series of Additional Secured Debt for purposes of this Agreement including Section 7.7;
(3) states that the Company or such other Obligor Borrower and each Guarantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Additional Secured Debt is secured by the CollateralCollateral in accordance with the Security Documents;
(iii4) evidence that attaches as Exhibit 1 to such Additional Secured Debt Designation a Reaffirmation Agreement in substantially the officer's certificate delivered pursuant form attached as Exhibit 1 to clause (i) above has been duly authorized by the Board Exhibit A of Directors of the Company and this Agreement, which Reaffirmation Agreement has been duly executed by the Borrower and deliveredeach Guarantor; and
(iv5) states that the Borrower has caused a written notice specifying the name and address copy of the Additional Secured Debt Designation and the related Collateral Trust Joinder to be delivered to each then existing Secured Debt Representative. Although the Borrower shall be required to deliver a copy of each Additional Secured Debt Designation and each Collateral Trust Joinder to each then existing Secured Debt Representative, the failure to so deliver a copy of the Additional Secured Debt and/or Collateral Trust Joinder to any then existing Secured Debt Representative for shall not affect the status of such series of New debt as Additional Secured Debt for purposes if the other requirements of this Section 7.53.8 are complied with. The Borrower shall also provide a legal opinion of counsel to the Collateral Trustee and any Secured Debt Representative as to the Additional Secured Debt being secured by a valid and perfected security interest in the Collateral; provided, however, that such legal opinion or opinions need not address any collateral of a type or located in a jurisdiction not previously covered by any legal opinion delivered by or on behalf of the Borrower. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company Borrower or any other Obligor Guarantor to incur additional Indebtedness unless otherwise permitted Funded Debt or Liens if prohibited by the terms of any Secured Debt Documents.
(c) With respect to any Secured Obligations constituting a Series of Secured Debt that is issued or incurred after the date hereof, the Borrower and each of the Guarantors agrees to take such actions (if any) as necessary and appropriate and as may from time to time reasonably be requested by the Collateral Trustee, any Priority Lien Debt Representative, any Parity Lien Debt Representative or any Act of Required Secured Parties, and enter into such technical amendments, modifications and/or supplements to the then existing Guarantees and Security Documents (or execute and deliver such additional Security Documents) as may from time to time be reasonably requested by such Persons (including as contemplated by clause (d) below), to ensure that the Additional Secured Debt is secured by, and entitled to the benefits of, the relevant Security Documents, and each Secured Party (by its acceptance of the benefits hereof) hereby agrees to, and authorizes the Collateral Trustee to enter into, any such technical amendments, modifications and/or supplements (and additional Security Documents). The Borrower and each Guarantor hereby further agree that, if there are any recording, filing or other similar fees payable in connection with any of the actions to be taken pursuant to this Section 3.8(c) or Section 3.8(d), all such amounts shall be paid by, and shall be for the account of, the Borrower and the respective Guarantors, on a joint and several basis.
(d) Without limitation of the foregoing, the Borrower and each of the Guarantors agree to take the following actions with respect to any real property Collateral with respect to all Additional Secured Debt:
(1) the Borrower and the applicable Guarantors shall enter into, and deliver to the Collateral Trustee a mortgage modification (each such modification, a “Modification”) or new mortgage or deed of trust with regard to each real property subject to a mortgage or deed of trust (each such mortgage or deed of trust a “Mortgage,” and each such property a “Mortgaged Property”), with such changes as may be required to account for local law matters, at the time of such incurrence, in proper form for recording in all applicable jurisdictions, in a form and substance reasonably satisfactory to the Collateral Trustee, the Controlling Representative and the Borrower and such Guarantors are jointly and severally liable to pay all filing and recording fees and taxes, documentary stamp taxes and other taxes, charges and fees, if any, necessary for filing or recording in the recording office of each jurisdiction where such real property to be encumbered thereby is situated;
(2) the Borrower or the applicable Guarantor will cause to be delivered a local counsel opinion with respect to each such Mortgaged Property in form and substance, and issued by law firms, in each case, reasonably satisfactory to the Collateral Trustee and the Controlling Representative;
(3) the Borrower or the applicable Guarantor will cause a title company reasonably acceptable to the Controlling Representative to have delivered to the Collateral Trustee a title insurance policy (or, as applicable, an endorsement to each title insurance policy previously delivered to the Collateral Trustee with respect to the Mortgage or Mortgages for such Class of Secured Obligations), date down(s) or other evidence reasonably satisfactory to the Controlling Representative (which may include a new title insurance policy) (each such delivery, a “Title Datedown Product”), in each case insuring that (i) the validity, enforceability and priority of the Liens of the applicable Mortgage(s) as security for the Priority Lien Debt Obligations or Parity Lien Debt Obligations, as applicable, (including such Additional Secured Debt) has not changed and, if a new Mortgage is entered into, that the Lien of such new Mortgage securing the Priority Lien Debt or Parity Lien Debt, as applicable, then being incurred shall be enforceable and have the same priority as any existing Mortgage securing then existing Priority Lien Debt Obligations or Parity Lien Debt Obligations, as applicable, (ii) confirming and/or insuring that since the later of the original date of such title insurance product and the date of the Title Datedown Product delivered most recently prior to (and not in connection with) such Additional Secured Debt, there has been no change in the condition of title and (iii) there are no intervening liens or encumbrances which may then or thereafter take priority over the Lien of the applicable Mortgage(s), in each case other than with respect to Liens permitted by each Secured Debt Document (without adding any additional exclusions or exceptions to coverage); and
(4) the Borrower or the applicable Guarantor shall deliver to the approved title company, the Collateral Trustee and/or all other relevant third parties all other items reasonably necessary to record each such Mortgage and Modification, to issue a Title Datedown Product and to create, perfect or preserve the validity, enforceability and priority of the Lien of the mortgage(s) as set forth above and contemplated hereby and by the Secured Debt Documents.
(e) the Borrower shall have the right at any time on or after the Discharge of Priority Lien Debt Obligations has occurred, to enter into any Priority Lien Document evidencing a Priority Lien Debt which incurrence is not prohibited by the applicable Secured Debt Documents, and to designate such Funded Debt as Priority Lien Debt in accordance with Section 3.8(b). At any time from and after the date of such designation pursuant to Section 3.8(b) (the “Reference Date”), subject to compliance with Sections 3.8(c) and (d), the obligations under such Priority Lien Document shall automatically and without further action be treated as Priority Lien Debt for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Collateral set forth herein, and the Parity Lien Debt Obligations shall be at all times subordinated and junior to such Priority Liens Obligations pursuant to the terms of this Agreement, including with respect to Parity Lien Debt Obligations that were incurred or outstanding on or prior to the Reference Date.
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Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder.
(b) The Company Borrower or other applicable Obligor shall Pledgor will be permitted to designate as an additional holder of Secured Debtholders Obligations hereunder each person Person who is, or who becomes, the registered holder of Parity Lien Debt or the registered holder of Priority Lien Debt incurred by the Company Borrower or such other Obligor Pledgor after the date of this Agreement in accordance with the terms of the all applicable Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company Borrower or other applicable Obligor Pledgor may effect such designation by delivering to the Priority Lien Collateral TrusteeAgent and the Collateral Agent, with copies to each previously identified Secured Debt Representative, each of the following:
(i1) An officer's certificate of the Company an Officers’ Certificate stating that:
(A) the Company Borrower or such other Obligor Pledgor intends to incur additional Secured Debt ("New “Additional Secured Debt"”) which shall will either be (xi) Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with by a Priority Lien on a pari passu basis equally and ratably with all previously existing and future Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (yii) Parity Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with a Parity Lien on a pari passu basis equally and ratably with all previously existing and future Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and
(B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt DefaultDebt;
(ii2) evidence that the Company Borrower or such other Obligor Pledgor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Additional Secured Debt is secured by the Collateral;
(iii) evidence that Collateral in accordance with the officer's certificate delivered pursuant to clause (i) above has been duly authorized by Priority Lien Security Documents and the Board of Directors of the Company and has been duly executed and deliveredSecurity Documents; and
(iv3) a written notice specifying the name and address of the Secured Debt Representative for such series of New Additional Secured Debt for purposes of Section 7.56.8. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company Borrower or any other Obligor Pledgor to incur additional Indebtedness unless otherwise permitted by the terms of the all applicable Secured Debt Documents.
(b) A person to be designated as an additional holder of Secured Obligations hereunder must, prior to such designation,
(1) sign, through its designated Secured Debt Representative identified pursuant to Section 4.3(a), an Intercreditor Agreement Joinder; and
(2) deliver a Lien Sharing and Priority Confirmation.
Appears in 1 contract
Sources: Intercreditor Agreement (Advanced Audio Concepts, LTD)
Additional Secured Debt. (a) The Collateral Trustee willSubject to, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder the case of Secured Obligations of a Series of Additional Secured Debt that is issued or incurred after the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt Debt, the consent of the Credit Agreement Agent (which consent shall be evidenced by the execution and delivery by such Credit Agreement Agent of an acknowledgement and acceptance of any Intercreditor Agreement Joinder executed and delivered in accordance connection with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated issuance of such Additional Secured Debt Representative identified pursuant to Section 3.8(bDebt), a Collateral Trust Joinder.
(b) The Company Holdings or any other applicable Obligor shall Grantor will be permitted to designate as an additional holder of the applicable Secured Debtholders Obligations hereunder each person Person who is, or who becomes, the registered holder of Parity Junior Lien Debt or the registered holder of Priority Lien Debt Debt, in each case incurred by the Company Holdings, ▇▇▇▇ Rental or such other Obligor Grantor after the date of this Agreement in accordance with the terms of the all applicable Secured Debt Documents; provided . It is understood and agreed that for purposes of nothing in this Section 3.8, all extensions of credit under 3.2 is intended to alter the Credit Agreement (including issuances of letters of credit) shall be deemed priorities among Secured Parties belonging to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made different Classes as provided in Section 2.1. Holdings or incurred) shall be deemed Priority Lien Debt. The Company or any other applicable Obligor Grantor may effect such designation by delivering to the Collateral Trusteeeach Agent, with copies to each previously identified Secured Debt Representative, each of the following:
(i1) An officer's certificate of the Company an Officer’s Certificate stating that:
(A) the Company that Holdings or such other Obligor Grantor intends to incur additional Secured Debt ("New “Additional Secured Debt"”) which shall will either be (xi) Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with by a Priority Lien on a pari passu basis equally and ratably (or as otherwise may be agreed by the relevant holders of the Priority Lien Obligations) with all previously existing and future Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (yii) Parity Junior Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with a Parity Junior Lien on a pari passu basis equally and ratably with all previously existing and future Parity Junior Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and
(B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt DefaultDebt;
(ii2) evidence that the Company Holdings or such other Obligor Grantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Additional Secured Debt is secured by the Collateral;
(iii) evidence that Collateral in accordance with the officer's certificate delivered pursuant to clause (i) above has been duly authorized by Priority Lien Security Documents and the Board of Directors of the Company and has been duly executed and deliveredParity Junior Lien Security Documents; and
(iv3) a written notice specifying the name and address of the Secured Debt Representative and the applicable collateral agent for such series of New Additional Secured Debt for purposes of Section 7.56.6(a). Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company Holdings or any other Obligor Grantor to incur additional Indebtedness unless otherwise such Indebtedness is expressly permitted by the terms of the all applicable Secured Debt Documents.
(b) A person to be designated as an additional holder of any Class of Secured Obligations hereunder must, prior to such designation, sign an Intercreditor Agreement Joinder.
(c) Each of the parties hereto (whether existing as of the date hereof or added hereto in accordance with the provisions of Section 3.2(a) and (b), and including each Agent, Secured Debt Representative and holder of Secured Obligations) hereby agrees for the benefit of each of the other parties hereto (including all holders of obligations in respect of Additional Secured Debt that are (or whose representatives are) added as parties to this Agreement in accordance with the provisions of Section 3.2(a) and (b)) that, without limiting the right of any holder of Secured Obligations to waive or subordinate any lien sharing right to which it is otherwise entitled (pursuant to a waiver or subordination agreement expressly set forth in a written agreement enforceable against such holder), (i) Collateral shall be shared equally and ratably within each Class (or, in the case of Priority Lien Obligations, on such other basis as may be agreed by the relevant holders of the Priority Lien Obligations) and (ii) the payment and satisfaction of all of the Secured Obligations within each Class will be secured equally and ratably by the Liens established for the benefit of the Secured Parties belonging to such Class (or, in the case of any Priority Lien Obligations, on such other basis as may be agreed by the relevant holders of the Priority Lien Obligations).
Appears in 1 contract
Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder.
(b) The Company Borrower or other applicable Obligor shall Guarantor will be permitted to designate as an additional holder of Secured Debtholders Obligations hereunder each person Person who is, or who becomes, the registered holder of Parity Lien Debt or the registered holder of Priority Lien Debt incurred by the Company Borrower or such other Obligor Guarantor after the date of this Agreement in accordance with the terms of the all applicable Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company Borrower or other applicable Obligor Guarantor may effect such designation by delivering to the Priority Lien Collateral TrusteeAgent and Collateral Agent, with copies to each previously identified Secured Debt Representative, each of the following:
(i1) An officer's certificate of the Company an Officers' Certificate stating that:
(A) the Company Borrower or such other Obligor Guarantor intends to incur additional Secured Debt ("New Additional Secured Debt") which shall will either be (xi) Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with by a Priority Lien on a pari passu basis equally and ratably with all previously existing and future Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (yii) Parity Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with a Parity Lien on a pari passu basis equally and ratably with all previously existing and future Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and
(B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt DefaultDebt;
(ii2) evidence that the Company Borrower or such other Obligor Guarantor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Additional Secured Debt is secured by the Collateral;
(iii) evidence that Collateral in accordance with the officer's certificate delivered pursuant to clause (i) above has been duly authorized by Priority Lien Security Documents and the Board of Directors of the Company and has been duly executed and deliveredSecurity Documents; and
(iv3) a written notice specifying the name and address of the Secured Debt Representative for such series of New Additional Secured Debt for purposes of Section 7.56.8. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company Borrower or any other Obligor Guarantor to incur additional Indebtedness unless otherwise permitted by the terms of the all applicable Secured Debt Documents.
(b) A person to be designated as an additional holder of Secured Obligations hereunder must, prior to such designation,
(1) sign, through its designated Secured Debt Representative identified pursuant to Section 4.3(a), an Intercreditor Agreement Joinder; and
(2) deliver a Lien Sharing and Priority Confirmation.
Appears in 1 contract
Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after MRC Global and the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder.
(b) The Company or other applicable Obligor shall Grantors will be permitted to designate as an additional holder of Secured Debtholders Debt Obligations hereunder each person Person who is, or who becomesbecomes or who is to become, the registered holder of Parity Lien Debt or the holder of Term Priority Lien Debt incurred by the Company MRC Global or such other Obligor Grantor after the date of this Agreement in accordance with the terms of all applicable Secured Documents. MRC Global or the Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company or other applicable Obligor Grantor may effect such designation by delivering to the Term Collateral Trustee, with copies to each previously identified Secured Debt RepresentativeAgent and the Revolving Credit Collateral Agent, each of the following:
(i) An officer's certificate of the Company an Officers’ Certificate stating that:
(A) the Company that MRC Global or such other Obligor Grantor intends to incur additional Secured Term Priority Lien Debt ("New “Additional Secured Debt"”) which shall either will be (x) Term Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be incurred and secured with by a Term Priority Lien on a pari passu basis equally and ratably with all previously existing and future Term Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (y) Parity Lien Debt permitted by each agreement governing Secured Debt to be secured with a Parity Lien on a pari passu basis with all previously existing Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt DocumentDebt; and
(Bii) after giving pro forma effect an authorized agent, trustee or other representative on behalf of the holders or lenders of any Additional Secured Debt must be designated as an additional holder of Secured Debt Obligations hereunder and must, prior to or substantially concurrent with such designation, sign and deliver on behalf of the incurrence holders or lenders of such New Additional Secured Debt and the application of the proceeds therefroman Intercreditor Agreement Joinder, no Secured Debt Default shall have occurred and be continuing and, to the best extent necessary or appropriate to facilitate such transaction (or upon the request of either Collateral Agent), a new intercreditor agreement substantially similar to this Agreement, as in effect on the signatory's knowledge after due inquirydate hereof, no event or condition which must be reasonably satisfactory to each Collateral Agent and shall have occurred which could reasonably be expected to result in a Secured Debt Default;
provide (iiamong other customary matters) evidence that the Company or such other Obligor has duly authorized, executed (if applicable) and recorded (or caused Term Collateral Agent is the “controlling” Collateral Agent with respect to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Secured Debt is secured by the Term Priority Lien Collateral;
(iii) evidence that the officer's certificate delivered pursuant to clause (i) above has been duly authorized by the Board of Directors of the Company and has been duly executed and delivered; and
(iv) a written notice specifying the name and address of the Secured Debt Representative for such series of New Secured Debt for purposes of Section 7.5. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company MRC Global or any other Obligor Grantor to incur additional Indebtedness indebtedness unless otherwise permitted by the terms of the each applicable Secured Debt DocumentsDocument.
Appears in 1 contract
Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after MRC Global and the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder.
(b) The Company or other applicable Obligor shall Grantors will be permitted to designate as an additional holder of Secured Debtholders Debt Obligations hereunder each person Person who is, or who becomesbecomes or who is to become, the registered holder of Parity Term Priority Lien Debt or the registered holder of Priority Subordinated Lien Debt incurred by the Company MRC Global or such other Obligor Grantor after the date of this Agreement in accordance with the terms of all applicable Secured Documents. MRC Global or the Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company or other applicable Obligor Grantor may effect such designation by delivering to the Collateral Trustee, with copies to each previously identified Secured Debt RepresentativeTrustee and the Revolving Credit Collateral Agent, each of the following:
(i) An officer's certificate of the Company an Officers’ Certificate stating that:
(A) the Company that MRC Global or such other Obligor Grantor intends to incur additional Secured Term Priority Lien Debt and/or Subordinated Lien Debt ("New “Additional Secured Debt"”) which shall either will be (x1) Term Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be incurred and secured with by a Term Priority Lien on a pari passu basis equally and ratably with all previously existing and future Term Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (y2) Parity Subordinated Lien Debt permitted by each agreement governing applicable Secured Debt Document to be incurred and secured with by a Parity Subordinated Lien on a pari passu basis equally and ratably with all previously existing Parity and future Subordinated Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt DocumentDebt; and
(Bii) after giving pro forma effect an authorized agent, trustee or other representative on behalf of the holders or lenders of any Additional Secured Debt must be designated as an additional holder of Secured Debt Obligations hereunder and must, prior to or substantially concurrent with such designation, sign and deliver on behalf of the incurrence holders or lenders of such New Additional Secured Debt and the application of the proceeds therefroman Intercreditor Agreement Joinder, no Secured Debt Default shall have occurred and be continuing and, to the best of extent necessary or appropriate to facilitate such transaction, a new intercreditor agreement substantially similar to this Agreement, as in effect on the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt Default;
(ii) evidence that the Company or such other Obligor has duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations to ensure that the New Secured Debt is secured by the Collateral;
(iii) evidence that the officer's certificate delivered pursuant to clause (i) above has been duly authorized by the Board of Directors of the Company and has been duly executed and delivered; and
(iv) a written notice specifying the name and address of the Secured Debt Representative for such series of New Secured Debt for purposes of Section 7.5date hereof. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company MRC Global or any other Obligor Grantor to incur additional Indebtedness indebtedness unless otherwise permitted by the terms of the each applicable Secured Debt DocumentsDocument.
Appears in 1 contract
Sources: Loan, Security and Guarantee Agreement (MRC Global Inc.)
Additional Secured Debt. (a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after the date hereof that (i) holds Secured Obligations that are identified as a holder of Parity Lien Debt or Priority Lien Debt in accordance with the procedures set forth in Section 3.8(b) and (ii) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder.
(b) The Company Any Borrower or other applicable Obligor shall Pledgor will be permitted to designate as an additional holder of Secured Debtholders Obligations hereunder each person Person who is, or who becomes, the registered holder of Parity Lien Debt or the registered holder of Priority Lien Debt incurred by the Company such Borrower or such other Obligor Pledgor after the date of this Agreement in accordance with the terms of the all applicable Secured Debt Documents; provided that for purposes of this Section 3.8, all extensions of credit under the Credit Agreement (including issuances of letters of credit) shall be deemed to be incurred on the date hereof so that no such further designation shall be required to be made so that all such extensions of credit under the Credit Agreement (regardless when made or incurred) shall be deemed Priority Lien Debt. The Company Any Borrower or other applicable Obligor Pledgor may effect such designation by delivering to the Collateral Trustee, the Priority Lien Collateral Agent and the Parity Lien Collateral Agent, with copies to each previously identified Secured Debt Representative, each of the following:
(i1) An officer's certificate of the Company an Officers’ Certificate stating that:
(A) the Company that such Borrower or such other Obligor Pledgor intends to incur additional Secured Debt ("New “Additional Secured Debt"”) which shall will either be (xA) Priority Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with by a Priority Lien on a pari passu basis equally and ratably with all previously existing and future Priority Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Priority Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of the Secured Debt Documents or (yB) Parity Lien Debt permitted by each agreement governing applicable Secured Debt Document to be secured with a Parity Lien on a pari passu basis equally and ratably with all previously existing and future Parity Lien Debt and which, when incurred and after giving pro forma effect to the incurrence of such Parity Lien Debt and the application of the proceeds therefrom, shall be in an aggregate principal amount that is permitted by the terms of each Secured Debt Document; and
(B) after giving pro forma effect to the incurrence of such New Secured Debt and the application of the proceeds therefrom, no Secured Debt Default shall have occurred and be continuing and, to the best of the signatory's knowledge after due inquiry, no event or condition shall have occurred which could reasonably be expected to result in a Secured Debt DefaultDebt;
(ii2) evidence an Opinion of Counsel to the effect that the Company such Borrower or such other Obligor Pledgor has (A) duly authorized, executed (if applicable) and recorded (or caused to be recorded) in each appropriate governmental office all relevant filings and recordations and other documents to ensure that the New Additional Secured Debt is secured by a lien on substantially the Collateral;
same Collateral (iiiincluding substantially the same Collateral Trust Security Rights) evidence as that the officer's certificate delivered pursuant to clause (i) above has been duly authorized held by the Board of Directors of Priority Lien Collateral Agent or the Company Parity Lien Collateral Agent, as the case may be, and has (B) all required consents have been duly executed and deliveredobtained with respect to the additional guarantees issued to the Collateral Trustee with respect to such Additional Secured Debt; and
(iv3) a written notice specifying the name and address of the Secured Debt Representative for such series of New Additional Secured Debt for purposes of Section 7.57.8. Notwithstanding the foregoing, nothing in this Agreement shall will be construed to allow the Company any Borrower or any other Obligor Pledgor to incur additional Indebtedness unless otherwise permitted by the terms of the all applicable Secured Debt Documents.
(b) A Person to be designated as an additional holder of Secured Obligations hereunder must, prior to such designation,
(1) sign, through its designated Secured Debt Representative identified pursuant to Section 4.3(a), an Intercreditor Agreement Joinder and deliver such document to the Collateral Trustee and each Secured Debt Representative; and
(2) sign a Lien Sharing and Priority Confirmation and deliver such document to the Collateral Trustee and each Secured Debt Representative. Originals of the foregoing documents shall be delivered to the Priority Lien Collateral Agent and the Parity Lien Collateral Agent, provided that after the Discharge of Priority Lien Obligations, originals thereof need not be delivered to the Priority Lien Collateral Agent.
Appears in 1 contract
Sources: Intercreditor Agreement (MagnaChip Semiconductor LTD (United Kingdom))