Common use of Advances to Subsidiaries Clause in Contracts

Advances to Subsidiaries. The Company shall not make any advances or capital contributions, transfer any assets, or otherwise become a creditor, to any Subsidiary that is not a Wholly Owned Subsidiary (a "Borrowing Subsidiary") unless (a) such advance, capital contribution, transfer or creditor arrangement is made in the form of a senior secured loan to the Borrowing Subsidiary, (b) the advance, capital contribution, transfer or creditor arrangement is evidenced by a Subsidiary Intercompany Note in favor of the Company and (c) the Borrowing Subsidiary has no other Indebtedness (other than Indebtedness evidenced by a Subsidiary Intercompany Note) at the time the advance, capital contribution, transfer or creditor arrangement is made or the Borrowing Subsidiary immediately applies the advance to pay the entire principal of, and any premium and interest on, all Indebtedness of the Borrowing Subsidiary in existence at the time the advance is made. The Subsidiary Intercompany Notes shall be payable upon demand, shall bear interest at the same rate as the Senior Notes, or such higher rate as the Company may determine, and shall be secured by a first priority Lien on all of the assets of the Borrowing Subsidiary. A form of Subsidiary Intercompany Note is attached as Exhibit G hereto. Notwithstanding the foregoing, a Subsidiary Intercompany Note will not be required to be secured by a first priority Lien with respect to all or a portion of the assets of the Borrowing Subsidiary if (i) such assets are subject to a first priority Lien securing obligations of the Borrowing Subsidiary that do not constitute Indebtedness under the Indenture (the "Secured Obligations") and such Lien is in existence as of the date of issuance of the Subsidiary Intercompany Note, (ii) the Company provides one or more letters of credit naming the person(s) identified as the creditor(s) under the Lien securing the Secured Obligations (or any person identified in writing to the Company by such creditor(s) under such Lien) as beneficiary thereunder, and (iii) for each fiscal year of the Borrowing Subsidiary that such Secured Obligations exist, such letters of credit are for an aggregate amount sufficient to satisfy all payments under the Secured Obligations becoming due and payable during such fiscal year. The Company shall not permit any Subsidiary in respect of which the Company is a creditor by virtue of a Subsidiary Intercompany Note to incur any Indebtedness other than Indebtedness to the Company evidenced by a Subsidiary Intercompany Note. Each Subsidiary Intercompany Note shall be amended, and appropriate financing statements be filed, simultaneous with any increases or decreases in the aggregate principal amount outstanding thereunder, and the Company shall not amend any of the material terms of the Subsidiary Intercompany Note, except as may be required to conform the provisions of such instrument to the provisions to be contained in a Subsidiary Intercompany Note as set forth in this Section 4.18 and in Exhibit G hereto. The Company shall pursue all remedies available to it under any Subsidiary Intercompany Note and the Company shall enforce fully its rights under any Subsidiary Intercompany Note.

Advances to Subsidiaries. The Company shall not make any advances or capital contributions, transfer any assets, or otherwise become a creditor, Cause all Advances to any Subsidiary that is not a Wholly Owned Subsidiary (a "Borrowing Subsidiary") unless (a) such advance, capital contribution, transfer or creditor arrangement is Subsidiaries made in by the form Borrower after the date of a senior secured loan this AgreementIssue Date to the Borrowing Subsidiary, (b) the advance, capital contribution, transfer or creditor arrangement is be evidenced by a Subsidiary Intercompany Note intercompany notes in favor of the Company Borrower, which intercompany notes shallthe Intercompany Subordination Agreement. The Intercompany Subordination Agreement will be pledged pursuant to the Security Documents as Collateral to secure the Loans. DB1/ 137577079.4 -82- 6.15 Real Estate Mortgages and Filings. With respect to any Mortgaged Property owned in fee by the Borrower or any Guarantor, use commercially reasonable efforts to, within 90 days of the acquisition thereof: (a) deliver to the Collateral Trustee, as mortgagee, for the benefit of the Lender, fully executed counterparts of Mortgages, duly executed by the Borrower or the applicable Guarantor, as the case may be, and corresponding UCC fixture filings, together with evidence of the completion (or satisfactory arrangements for the completion) of all recordings and filings of such Mortgages and corresponding UCC fixture filings as may be necessary to create a valid, perfected Lien, subject to Permitted Liens, against the Premises purported to be covered thereby; (b) deliver to the Collateral Trustee, (i) mortgagee’s title insurance policies in favor of the Collateral Trustee in an amount equal to 100% of the fair market value of the Premises purported to be covered by the related Mortgages, insuring that title to such property is marketable and that the interests created by the Mortgage constitute valid Liens thereon free and clear of all Liens, defects and encumbrances other than Permitted Liens, and such policies shall also include, to the extent available and issued at commercially reasonable rates, customary endorsements and shall be accompanied by evidence of the payment in full (or satisfactory arrangements for the payment in full) of all premiums thereon and (ii) such affidavits, certificates, instruments of indemnification and other items (including a so-called “gap” indemnification) as shall be reasonably required to induce the title insurer to issue the title insurance policies and endorsements referenced herein with respect to each of the Premises; (c) the Borrowing Subsidiary has no other Indebtedness (other than Indebtedness evidenced by a Subsidiary Intercompany Note) at the time the advance, capital contribution, transfer or creditor arrangement is made or the Borrowing Subsidiary immediately applies the advance to pay the entire principal of, and any premium and interest on, all Indebtedness of the Borrowing Subsidiary in existence at the time the advance is made. The Subsidiary Intercompany Notes shall be payable upon demand, shall bear interest at the same rate as the Senior Notes, or such higher rate as the Company may determine, and shall be secured by a first priority Lien on all of the assets of the Borrowing Subsidiary. A form of Subsidiary Intercompany Note is attached as Exhibit G hereto. Notwithstanding the foregoing, a Subsidiary Intercompany Note will not be required to be secured by a first priority Lien with respect to all any Premises owned by the Borrower or a portion of Guarantor on the assets of ClosingIssue Date, deliver to the Borrowing Subsidiary if Collateral Trustee either (i) new ALTA surveys or (ii) the most recent existing surveys of such assets are subject to a first priority Lien securing obligations Premises, together with either (y) an updated survey certification in favor of the Borrowing Subsidiary Collateral Trustee from the applicable surveyor stating that, based on a visual inspection of the property and the knowledge of the surveyor, there has been no change in the facts depicted in the survey or (z) an affidavit and/or indemnity from the Borrower or the applicable Guarantor, as the case may be, stating that, to its knowledge, there has been no change in the facts depicted in the survey, other than, in each case, changes that do not constitute Indebtedness under materially adversely affect the Indenture use by the Borrower or such Guarantor, as applicable, of such Premises for the Borrower or such Guarantor’s business as so conducted at such Premises and in each case (the "Secured Obligations"i) and (ii), in form and substance sufficient for the title insurer issuing the title policies to remove the standard survey and survey-related exceptions from such Lien is policies and issue the survey, survey-related, and other endorsements required pursuant to subsection (b) above to such policy; (d) deliver opinions of counsel to the Collateral Trustee in existence as the jurisdictions where such Premises are located and the jurisdiction of the date of issuance of Borrower or the Subsidiary Intercompany Noteapplicable Guarantor, as the case may be, in each case, in form and substance customary in comparable financings, including, but not limited to, opinions stating that such Mortgage (i) has been duly authorized, executed and delivered by the Borrower or such Guarantor, (ii) constitutes a legal, valid, binding and enforceable obligation of the Company provides one Borrower or more letters of credit naming the person(s) identified as the creditor(s) under the Lien securing the Secured Obligations (or any person identified in writing to the Company by such creditor(s) under such Lien) as beneficiary thereunder, Guarantor and (iii) is in proper form for each fiscal year recording in order to create, when recorded in the appropriate recording office, a mortgage Lien on the property and a security interest in that part of the Borrowing Subsidiary that such Secured Obligations exist, such letters of credit are for an aggregate amount sufficient to satisfy all payments under the Secured Obligations becoming due and payable during such fiscal year. The Company shall not permit any Subsidiary in respect of which the Company is a creditor by virtue of a Subsidiary Intercompany Note to incur any Indebtedness other than Indebtedness to the Company evidenced by a Subsidiary Intercompany Note. Each Subsidiary Intercompany Note shall be amendedproperty constituting fixtures, and appropriate financing statements be filed, simultaneous with any increases or decreases in the aggregate principal amount outstanding thereunder, and the Company shall not amend any of the material terms of the Subsidiary Intercompany Note, except as may be required to conform the provisions of such instrument to the provisions to be contained in a Subsidiary Intercompany Note as set forth in this Section 4.18 and in Exhibit G hereto. The Company shall pursue all remedies available to it under any Subsidiary Intercompany Note and the Company shall enforce fully its rights under any Subsidiary Intercompany Note.upon proper