Certain Post-Closing Obligations. (a) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in respect of each Leasehold Property (other than those in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords. (b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable. (c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company. (d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii). (e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities. (f) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures. (g) The Credit Parties hereby agree as follows with respect to their Cash Management System: (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement. (h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Certain Post-Closing Obligations. (a) For Execute and deliver the documents and complete the tasks set forth on Schedule 5.15, in each case within the time limits specified therein (or such longer period of time acceptable to the Administrative Agent).
(b) The Collateral Agent shall receive from the applicable Loan Parties (x) within 120 days after (or such longer period of time acceptable to the Administrative Agent in its sole discretion) following the Closing Date, with respect to each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed Mortgaged Property designated by the applicable landlordBorrower in order to eliminate any Deficiency, and (y) in the applicable Credit Party shall deliver case of Real Property acquired after the Closing Date and designated by the Borrower to be Perfected Mortgaged Property, within 120 days (or such longer period of time acceptable to the Administrative Agent in its sole discretion) following such designation, in each case the following documents and instruments:
(i) a fully executed Mortgage duly authorized and notarized Mortgage executed, in proper form for recording in all appropriate places in all appropriate jurisdictions in respect the recording office of each Leasehold jurisdiction where such Mortgaged Property (other than those to be encumbered thereby is situated, in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation favor of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii).
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in favor the reasonable judgment of the Joint Administrative Agent) to create a Lien under applicable law, all of which shall be in form and substance reasonably satisfactory to Collateral Agent, which Mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the case may be, subject to no Liens other than Permitted Liens and Permitted Encumbrances applicable to such Mortgaged Property;
(ii) a fully paid American Land Title Association Lender’s Extended Coverage title insurance policy, with endorsements and in amounts reasonably acceptable to the Administrative Agent, issued by a title insurer reasonably acceptable to the Administrative Agent, insuring the Mortgage to be a valid first and subsisting Lien on such Mortgaged Property, free and clear of all defects and encumbrances, other than Permitted Encumbrances; provided however that such title insurance policy may include such general mechanics’ lien exceptions as the title insurer(s) may require, so long as such title insurance policy does not include a title exception identifying any specifically recorded mechanics’ lien that does not constitute a Permitted Encumbrance;
(iii) American Land Title Association/American Congress on Surveying and Mapping form plat of survey or such other form plat of survey as is reasonably acceptable to the Administrative Agent, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before (x) the Closing Date or (y) the date on which a Mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the Administrative Agent), certified to the Administrative Agent and the issuer of the Mortgage Policy pertaining to such Mortgaged Property in a manner reasonably satisfactory to the Administrative Agent by a land surveyor duly registered and licensed in the State in which the Mortgaged Property is located and reasonably acceptable to the Administrative Agent, showing all buildings and other improvements, the location of any easements, parking areas, rights of way, building set-back lines and other dimensional regulations located on or encumbering such Mortgaged Property, and the absence of encroachments, either by such improvements or on to such property, and other defects, in each case, other than (a) Permitted Encumbrances and (b) encroachments and other defects reasonably acceptable to the Administrative Agent;
(iv) as to any Mortgaged Property that is Leased Real Property, a copy of the ground lease between the lessor and the applicable Loan Party, including all amendments thereto, and, unless waived by the Administrative Agent in respect of its sole discretion, (a) an estoppel certificate, and (b) if required by the Health Care Facilities subject applicable lease, a consent to the Mortgage Loans listed encumbering the leasehold interest in such Mortgaged Property, in each case executed by the lessor of such Mortgaged Property, in form and substance contemplated by the provisions of the applicable lease, or as otherwise acceptable to the Administrative Agent;
(v) if required under the law of the State in which the Mortgaged Property is located in order to perfect a security interest in fixtures, a UCC fixture filing naming the applicable Loan Party as debtor, filed in the applicable land records;
(vi) to the extent available from the applicable governmental authority with respect to such jurisdiction, a property zoning report from a zoning consultant acceptable to the Administrative Agent or a zoning letter from the applicable governmental authority, dated no more than 90 days before (x) the Closing Date or (y) the date on which a Mortgage in respect thereof is required to be delivered hereby (or such other date as shall be reasonably acceptable to the Administrative Agent), confirming the zoning classification of the Mortgaged Property and that such classification permits the then current use of and improvements on the Mortgaged Property and otherwise in form and substance reasonably acceptable to the Administrative Agent;
(vii) policies or certificates of insurance of the type required by Section 5.02;
(viii) evidence of flood insurance required by Section 5.02(c), in form and substance reasonably satisfactory to Administrative Agent, it being understood that in any event the items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in required pursuant to this Section 5.17(eclause (viii) shall necessitate a prepayment of be required to be delivered prior to or on the day on which Mortgages are delivered pursuant to clause (i) above with respect to each Mortgaged Property;
(ix) all such Mortgage Loans not otherwise intended other items as shall be reasonably requested by the relevant Credit Parties. Following Administrative Agent to create a valid and perfected first priority mortgage Lien on such Mortgaged Property, including all fixtures, subject only to Permitted Encumbrances and Permitted Liens; and
(x) opinions of local counsel for the Closing DateLoan Parties in states in which the Mortgaged Properties are located, no Credit Party shall grant with respect to the enforceability and validity of the Mortgages and any other Lien related fixture filings in respect of such Health Care Facilitiesform and substance reasonably satisfactory to the Administrative Agent.
(fc) For Notwithstanding the provisions of this Section 5.15 or any other provision of this Agreement to the contrary, (i) if Borrower elects to designate any Real Property as a Mortgaged Property, and in the event that the expense to the Loan Parties (including, without limitation, attorneys’ fees) of satisfying one or more of the obligations and requirements described in Section 5.15(b)(ii) and/or (iii) is overly burdensome or expensive, or outweighs the incremental security or other benefit that would be conferred upon the Secured Parties if such obligations or requirements were satisfied with respect to the applicable Mortgaged Property or Mortgaged Properties, in each case as determined by the Administrative Agent in its reasonable discretion, then the Loan Parties shall not be required to perform or fulfill such obligations or requirements with respect to the applicable Mortgaged Property or Mortgaged Properties and (ii) in no event shall any Loan Party be required to satisfy the obligations or requirements described in Section 5.15(b)(ii), (iii), (iv), (v) and/or (vi) for Mortgaged Properties constituting Pipeline Systems or Pipeline Real Property.
(d) Within three (3) weeks (or such longer period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except time acceptable to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Administrative Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, its sole discretion) immediately following the Closing Date, the Administrative Agent shall have received an Appraisal Report dated no Credit Party shall grant any other Lien in respect of the Capital Stock in more than thirty (30) days before such Joint Venturesdate.
(ge) The Credit Parties hereby agree as follows with respect Within 60 days (or such longer period of time acceptable to their Cash Management System: (ithe Administrative Agent in its sole discretion) within 30 days after immediately following the Closing Date, the Credit Parties will Administrative Agent shall have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or received (i) Phase I report (dated no more of the JPMorgan Chase Bank Concentration Accounts than thirty (30) days before such date and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Administrative Agent) for the properties located in Baton Rouge, Galveston, and Weirton and (ii) a reliance letter from the Phase I consultants granting reliance to Administrative Agent and Lenders with the Phase Is, environmental compliance audits and reliance letters , each in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Certain Post-Closing Obligations. (a) For Prior to the period of 120 days after the Closing first Credit Date, each Credit Party Company shall use all its commercially have used reasonable best efforts to obtain a consent to the collateral assignment to Collateral Agent and Lenders of rights existing under all Material Contracts listed on Schedule 5.15(a), such consent in form and substance reasonably ---------------- satisfactory to Syndication Agent and Administrative Agent.
(b) Prior to the first Credit Date, Company shall have used reasonable efforts to obtain from each Person identified on Schedule 5.15(b) an ---------------- acknowledgment letter in favor of Collateral Agent, for the benefit of Lenders, in the form of Exhibit L with respect to each corresponding agreement listed on --------- such Schedule 5.15(b). ----------------
(c) Company shall use reasonable efforts to obtain, and in any event prior to any Credit Date shall have obtained, a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions Personal Property Collateral Access Agreement in respect of each Leasehold Property in which Collateral financed with the proceeds of Loans made on such Credit Date is or is to be located (other than those in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l3.1(g)(vi)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any . Each Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall take all actions necessary to ensure that all Collateral at any Leasehold Property is subject to a Landlord Personal Property Collateral Access Agreement (i) with any modifications, amendments or waivers thereof as the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage Syndication Agent and Administrative Agent shall, in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding companytheir sole discretion, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereofapprove); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Prior to the first Credit Party Date, Holdings shall use have either (i) repaid all its commercially reasonable best efforts Indebtedness and discharged and terminated all obligations of any nature under the NTFC Agreement or (ii) executed an amendment agreement to obtain ALTA mortgage title insurance policies the NTFC Agreement and procured the entry into of an intercreditor agreement by NTFC Capital Corporation and the Collateral Agent each in form and substance reasonably satisfactory to the Syndication Agent and Administrative Agent and Collateral Monitoring Agent have demonstrated to their reasonable satisfaction that Holdings will be in respect pro forma compliance with the financial covenants thereunder through maturity of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii)the NTFC Agreement.
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 Within 30 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create and in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except event prior to the extent first Credit Date (i) Company shall have established Equipment Subsidiary as a direct Wholly-Owned Subsidiary of Company, (ii) Equipment Subsidiary shall have become a Guarantor hereunder by the execution of a Counterpart Agreement and have taken all such security interest was granted on action and executed and delivered, or caused to be executed and delivered, all such documents, instruments, agreements, and certificates similar to these described in Sections 3.1 (b), 3.1 (f) and 3.1 (l), and (iii) Equipment Subsidiary shall have become a Grantor under the Closing Date Subsidiary Pledge and Security Agreement by delivering to the Joint Collateral Agent execution of a completed Pledge Supplement, Supplement substantially in the form of Exhibit A attached to the Master Pledge and Security AgreementAgreement and have taken all such action and executed and delivered, together with or caused to be executed and delivered, all Supplements such documents, instruments, agreements, and certificates similar to Schedules theretothese described in Sections 3.1 (b), reflecting such Pledged Stock3.1 (f) and 3.1 (l).
(f) Prior to the first Credit Date, Holdings shall procure the capitalization of all outstanding intercompany Indebtedness owed to it by any of its Subsidiaries on terms reasonable satisfactory to the Syndication Agent and Administrative Agent.
(g) Prior to the first Credit Date, Holdings shall make capital contributions to Company and ensure that as of the first Credit Date, Cash Equivalents of Holdings shall not exceed $100,000,000. Without limitation, At all times following the Closing Date, no Credit Party Holdings shall grant any other Lien in respect make capital contributions to Company of the Capital Stock in cash proceeds (any such Joint Ventures.
(gproceeds, net of underwriting discounts and commissions, arranger fees and other reasonable costs, legal fees and expenses) The Credit Parties hereby agree as follows with respect to their Cash Management System: from the issuance of all (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more equity securities of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, Holdings other than issuances to the JPMorgan Chase Concentration Accounts; directors, officers or employees or otherwise in connection with employee benefit arrangements and (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts debt securities and borrowings other than Indebtedness incurred pursuant to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes"Sections 6.1(h) and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.6.1
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Focal Communications Corp)
Certain Post-Closing Obligations. (a) For Borrower shall design and implement the period Feedstock Execution Plan as specified therein and provide evidence of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in respect of each Leasehold Property (other than those in respect of which such has already been delivered prior implementation reasonably satisfactory to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlordsAdministrative Agent.
(b) Promptly following Borrower shall cause GCE Operating to implement the Closing Date Executive Hiring Plan as specified therein and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in provide evidence of such implementation reasonably satisfactory to the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following Borrower shall complete the Closing Date Rail Development Milestones as specified therein and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock provide evidence of such PHCMI Debtor and otherwise as incident completed milestones reasonably satisfactory to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding CompanyAdministrative Agent.
(d) Each Credit Party Borrower shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies complete the Gas Supply Commercial Milestones as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii)Agent.
(e) Promptly upon request by Borrower shall complete the Environmental and Permitting Milestones as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 Borrower shall use commercially reasonable efforts to enter into a Permitted Working Capital Facility within three hundred sixty-five (365) days after following the Closing Date.
(g) Borrower shall enter into a product marketing agreement or an offtake agreement with ExxonMobil, each in a form reasonably satisfactory to the Administrative Agent within two hundred forty (240) days following the Closing Date.
(h) Borrower shall enter into a franchise agreement with the County of ▇▇▇▇, in a form reasonably satisfactory to the Administrative Agent within ninety (90) days following the Tranche A Funding Date. 87 Bakersfield Refinery – Senior Credit Party Agreement
(i) Borrower shall use all its commercially reasonable best efforts to create obtain a Consent to Collateral Assignment in favor respect of Joint the Industrial Track Agreement by the date that is ninety (90) days following the Closing Date.
(j) The Collateral Agent, for Agent shall have received the benefit certificates representing the shares of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of Holdings, Borrower and the Closing Date, except Project Company pursuant to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules theretoan undated stock power for each such certificate executed in blank by a duly Authorized Representative of the Holdings, reflecting such Pledged Stock. Without limitationBorrower or the Project Company, as applicable, within thirty (30) days following the Closing Tranche A Funding Date, no Credit Party .
(k) Borrower shall grant any other Lien in respect deliver to Administrative Agent evidence from the CA Secretary of State of filing of the CA Foreign Qualification upon receipt, but in any event within forty-five (45) days after the Tranche A Funding Date (as extended by the Administrative Agent in its reasonable discretion).
(l) Borrower shall enter into agreements with each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Noah Verleun, in forms reasonably satisfactory to the Administrative Agent, prior to the Tranche A Funding Date that restrict the Disposition by such Persons of any Capital Stock in Sponsor or any of its Subsidiaries prior to the date on which the Class B MOIC (as defined in the HoldCo Borrower LLC Agreement in effect as of the date hereof) is at least 1.33x; unless (x) such Joint VenturesDisposition is for estate planning purposes to an entity that is and remains controlled by such person or (y) all of the cash proceeds from any such Dispositions are used to pay costs and expenses (specifically including amounts needed to purchase any Capital Stock or to cover any resultant tax liabilities) incurred in connection with the exercise of options to purchase Capital Stock. The foregoing restrictions in such agreements shall apply for so long as each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ Verleun, respectively, remain employed by the Sponsor or any of its Subsidiaries and shall continue following any separation of such Persons from the Sponsor or any of its Subsidiaries. Following the execution of the foregoing agreements, the Borrower shall use all commercially reasonable efforts to promptly enforce the terms of such agreements and pursue all available rights and remedies following any breach thereof by either counterparty.
(gm) The Credit Parties hereby agree Borrower shall, within ninety (90) days following the Tranche A Funding Date, amend the ARB EPC Agreement as follows follows, in each case, pursuant to an amendment or Change Order in form and substance reasonably satisfactory to the Administrative Agent (in consultation with respect to their Cash Management System: the Independent Engineer):
(i) within 30 days after to add to the Closing Datescope of work the design, procurement, delivery and installation of a membrane separation unit related to hydrogen production at the Credit Parties will have arranged for Project;
(ii) to add Compressor 15 (C-15) into the Concentration Accounts at First Union National Bank overall process;
(iii) to add to the scope of work the inspection and either refurbishment of existing desulfurizers or installation of new purge-gas pre-treatment systems (also known as an ‘iron-sponge’); and
(iv) if reasonably expected to be swept on a daily basis into required to meet the Significant Milestones, to add to the scope of work the design, procurement, delivery, and installation of any free-standing structure to support platforms around the Reactors; 88 Bakersfield Refinery – Senior Credit Agreement provided, that one or more of the JPMorgan Chase Bank Concentration Accounts foregoing shall not be required if TechnipFMC (or the engineer of record working under the ARB EPC Agreement) and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to Administrative Agent (at the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any direction of the First Union Concentration Accounts, the Credit Parties shall close Independent Engineer) mutually determine that any such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions items are not necessary to establish achieve Substantial Completion by the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security AgreementDate Certain.
(hn) Within 30 The Borrower shall, within sixty (60) days following the Closing Date, each Credit Party deliver an updated construction budget to the Administrative Agent (the “Updated Construction Budget”), in a form reasonably satisfactory to the Required Lenders, which Updated Construction Budget shall demonstrate a total specified contingency of at least $5,000,000; provided that, if the Borrower fails to deliver such Updated Construction Budget satisfying the foregoing requirements, then the Borrower shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(Bto, within two hundred forty (240) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for Date, cause Equity Contributions to be deposited into the Original NoteRevenue Account in an amount equal to or greater than the positive difference between (x) $5,000,000 and (y) the contingency specified in the Updated Construction Budget (such requirements in this proviso, in form and substance satisfactory the “Equity Contribution Requirement”). Notwithstanding the foregoing, the parties agree that no Default shall have occurred under this Section 5.25(n) prior to the Joint Collateral Agentdate which the Borrower has failed to satisfy the Equity Contribution Requirement.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Certain Post-Closing Obligations. (a) For Borrower shall cause the period OpCo Borrower to design and implement the Feedstock Execution Plan (as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in respect of each Leasehold Property (other than those in respect of which such has already been delivered prior implementation reasonably satisfactory to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlordsAdministrative Agent.
(b) Promptly following Borrower shall cause GCE Operating (as defined in the Closing Date OpCo Senior Credit Agreement) to implement the Executive Hiring Plan (as defined in the OpCo Senior Credit Agreement) as specified therein and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in provide evidence of such implementation reasonably satisfactory to the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following Borrower shall cause the Closing Date OpCo Borrower to complete the Rail Development Milestones (as defined in the OpCo Senior Credit Agreement) as specified therein and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock provide evidence of such PHCMI Debtor and otherwise as incident completed milestones reasonably satisfactory to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding CompanyAdministrative Agent.
(d) Each Borrower shall cause the OpCo Borrower to complete the Gas Supply Commercial Milestones (as defined in the OpCo Senior Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies Agreement) as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii)Agent.
(e) Promptly upon request by Borrower shall cause the OpCo Borrower to complete the Environmental and Permitting Milestones (as defined in the OpCo Senior Credit Agreement) as specified therein and provide evidence of such completed milestones reasonably satisfactory to the Administrative Agent, each . 66 Bakersfield Refinery - HoldCo Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.Agreement
(f) For Borrower shall cause the period of 120 days after the Closing Date, each Credit Party shall OpCo Borrower to use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the enter into an OpCo Senior Working Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, Facility within three hundred sixty-five (365) days following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures.
(g) The Credit Parties hereby agree as follows Borrower shall cause the OpCo Borrower to enter into a product marketing agreement or an offtake agreement with respect ExxonMobil, in a form reasonably satisfactory to their Cash Management System: the Administrative Agent within two hundred forty (i240) within 30 days after following the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following On or prior to the Closing OpCo Tranche A Funding Date, Borrower shall deliver, or cause the OpCo Loan Parties to deliver, as applicable, each Credit Party shall use its commercially reasonable best efforts to deliver of the following documents to the Joint Collateral Agent Administrative Agent:
(i) a Control Agreement in respect of each Account, duly executed and delivered by the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt Persons intended to be reissued by the maker thereof("Replacement Notes") parties thereto, which Control Agreement shall be in full force and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, effect and otherwise in form and substance reasonably satisfactory to the Joint Administrative Agent;
(ii) written opinions (dated as of the OpCo Tranche A Funding Date and addressed to the Administrative Agent, the Lenders and the Collateral Agent) of King & Spalding LLP, special New York counsel to the Loan Parties;
(iii) copies of the financial statements delivered to the OpCo Senior Administrative Agent under Section 4.02(d) of the OpCo Senior Credit Agreement;
(iv) copies of the insurance deliverables delivered to the OpCo Senior Administrative Agent under Section 4.02(l) of the OpCo Senior Credit Agreement; and
(v) an assignment agreement pursuant to which GCE Holdings shall have assigned, and OpCo Borrower shall have assumed, the SPA.
(i) Borrower shall arrange for payment on the OpCo Tranche A Funding Date (including through the application of OpCo Senior Loans on the OpCo Tranche A Funding Date) of all reasonable and documented out-of-pocket fees and expenses then due and payable pursuant to the Financing Documents.
(j) Borrower shall enter into a franchise agreement with the Country of ▇▇▇▇, in a form reasonably satisfactory to the Administrative Agent within ninety (90) days following the OpCo Tranche A Funding Date.
(k) Borrower shall cause the OpCo Borrower to deliver to Administrative Agent evidence from the CA Secretary of State (as defined in the OpCo Senior Credit Agreement) of filing of the CA Foreign Qualification (as defined in the OpCo Senior Credit Agreement) upon receipt, but in any event within forty-five (45) days after the OpCo Tranche A Funding Date (as extended by the Administrative Agent in its reasonable discretion). Notwithstanding anything to the contrary in this Section 5.25 or any Schedule referenced herein, (i) at the election of Borrower, Project Company may perform the obligations in this Section 5.25 in lieu of OpCo Borrower and (ii) the time periods for Borrower’s and OpCo Borrower’s 67 Bakersfield Refinery - HoldCo Credit Agreement compliance with each obligation under this Section 5.25 shall be extended by such additional time period or periods as the Administrative Agent may reasonably agree from time to time.
Appears in 1 contract
Sources: Credit Agreement (Global Clean Energy Holdings, Inc.)
Certain Post-Closing Obligations. (a) For Prior to the period of 120 days after the Closing first Credit Date, each Credit Party Company shall use all its commercially have used reasonable best efforts to obtain a consent to the collateral assignment to Collateral Agent and Lenders of rights existing under all Material Contracts listed on Schedule 5.15(a), such consent in form and ---------------- substance reasonably satisfactory to Syndication Agent and Administrative Agent.
(b) Prior to the first Credit Date, Company shall have used reasonable efforts to obtain from each Person identified on Schedule 5.15(b) an ---------------- acknowledgment letter in favor of Collateral Agent, for the benefit of Lenders, in the form of Exhibit L with respect to each corresponding agreement listed on --------- such Schedule 5.15(b). ----------------
(c) Company shall use reasonable efforts to obtain, and in any event prior to any Credit Date shall have obtained, a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions Personal Property Collateral Access Agreement in respect of each Leasehold Property in which Collateral financed with the proceeds of Loans made on such Credit Date is or is to be located (other than those in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l3.1(g)(vi)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any . Each Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall take all actions necessary to ensure that all Collateral at any Leasehold Property is subject to a Landlord Personal Property Collateral Access Agreement (i) with any modifications, amendments or waivers thereof as the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage Syndication Agent and Administrative Agent shall, in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding companytheir sole discretion, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereofapprove); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Prior to the first Credit Party Date, Holdings shall use have either (i) repaid all its commercially reasonable best efforts Indebtedness and discharged and terminated all obligations of any nature under the NTFC Agreement or (ii) executed an amendment agreement to obtain ALTA mortgage title insurance policies the NTFC Agreement and procured the entry into of an intercreditor agreement by NTFC Capital Corporation and the Collateral Agent each in form and substance reasonably satisfactory to the Syndication Agent and Administrative Agent and Collateral Monitoring Agent have demonstrated to their reasonable satisfaction that Holdings will be in respect pro forma compliance with the financial covenants thereunder through maturity of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii)the NTFC Agreement.
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 Within 30 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create and in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except event prior to the extent first Credit Date (i) Company shall have established Equipment Subsidiary as a direct Wholly-Owned Subsidiary of Company, (ii) Equipment Subsidiary shall have become a Guarantor hereunder by the execution of a Counterpart Agreement and have taken all such security interest was granted on action and executed and delivered, or caused to be executed and delivered, all such documents, instruments, agreements, and certificates similar to these described in Sections 3.1 (b), 3.1 (f) and 3.1 (l), and (iii) Equipment Subsidiary shall have become a Grantor under the Closing Date Subsidiary Pledge and Security Agreement by delivering to the Joint Collateral Agent execution of a completed Pledge Supplement, Supplement substantially in the form of Exhibit A attached to the Master Pledge and Security AgreementAgreement and have taken all such action and executed and delivered, together with or caused to be executed and delivered, all Supplements such documents, instruments, agreements, and certificates similar to Schedules theretothese described in Sections 3.1 (b), reflecting such Pledged Stock3.1 (f) and 3.1 (l).
(f) Prior to the first Credit Date, Holdings shall procure the capitalization of all outstanding intercompany Indebtedness owed to it by any of its Subsidiaries on terms reasonable satisfactory to the Syndication Agent and Administrative Agent.
(g) Prior to the first Credit Date, Holdings shall make capital contributions to Company and ensure that as of the first Credit Date, Cash Equivalents of Holdings shall not exceed $100,000,000. Without limitation, At all times following the Closing Date, no Credit Party Holdings shall grant any other Lien in respect make capital contributions to Company of the Capital Stock in cash proceeds (any such Joint Ventures.
(gproceeds, net of underwriting discounts and commissions, arranger fees and other reasonable costs, legal fees and expenses) The Credit Parties hereby agree as follows with respect to their Cash Management System: from the issuance of all (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more equity securities of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, Holdings other than issuances to the JPMorgan Chase Concentration Accounts; directors, officers or employees or otherwise in connection with employee benefit arrangements and (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts debt securities and borrowings other than Indebtedness incurred pursuant to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes"Sections 6.1(h) and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.6.1
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Focal Communications Corp)
Certain Post-Closing Obligations. (a) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in respect of each Leasehold Property (other than those in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l3.1(i)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the 105 CREDIT AND GUARANTY AGREEMENT 434546.21-New York Server 3A - MSW payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following Within 45 days after the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the aboveDate, each applicable Credit Party will shall (i) deliver to the Collateral Agent a fully executed and notarized Mortgage, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each of the Post-Closing Mortgaged Property and (ii) use all its commercially reasonable reasonably best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain an ALTA mortgage mortgagee title insurance policies policy therefor issued by one or more title companies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent (it being acknowledged that Fidelity National Title Insurace Company is so satisfactory) with respect to each Post-Closing Mortgaged Property, each in respect form and substance reasonably satisfactory to Administrative Agent and evidence satisfactory to Administrative Agent that such Credit Party has paid to the title company or to the appropriate Governmental Authorities (or made adequate provision for such payment, in the reasonable judgment of Administrative Agent) all expenses and premiums of the title company and all other sums required in connection with the issuance of each such title policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgage for each Post-Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii)the appropriate real estate records.
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(fc) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures.
(g) The Credit Parties hereby agree as follows with respect to their Cash Management System: (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Certain Post-Closing Obligations. (a) For the period of 120 days after the Closing DateAs promptly as practicable, each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in respect of each Leasehold Property (other than those in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafterthe time periods after the Effective Date specified in Schedule 5.14 (or such later date as the Administrative Agent reasonably agrees to in writing), including to reasonably accommodate circumstances unforeseen on the Effective Date, Holdings, the Company Borrower and each Loan Party, as applicable, shall deliver the documents or take the actions specified on Schedule 5.14 that would have been required to be delivered or taken on the Effective Date but for the proviso to Section 4.01(f), in each case except to the extent otherwise agreed by the Administrative Agent pursuant to its Guarantor Subsidiaries authority as set forth in the definition of “Collateral and Guarantee Requirement”; and
(b) No later than 120 days following the Effective Date (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings and the Borrower shall have obtained all Restructuring CHOW Approvals cause Material Real Property to be subjected to a Lien (subject to Liens permitted hereunder) to the extent required by the Collateral and Guarantee Requirement and will take, or cause the relevant Loan Party to take, such actions as shall be necessary to grant and perfect or reasonable advisable record such Lien, including, as applicable, the actions referred to in paragraph (in e) of the definition of “Collateral and Guarantee Requirement” and shall deliver to the Administrative Agent and the Collateral Agent signed copies of opinions, addressed to the Administrative Agent's , the Collateral Agent and the other Secured Parties, of local counsel for the Loan Parties in each jurisdiction where a Mortgaged Property is located, regarding the enforceability of each such Mortgage and such other matters as may be reasonably requested by the Administrative Agent or Syndication the Collateral Agent's judgment) , and each such local counsel opinion shall be in connection with the confirmation, consummation form and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision substance reasonably acceptable to the extent that Administrative Agent; provided, however, that, following Holdings and the Credit Parties Borrower’s satisfaction of such requirements, neither Holdings nor the Borrower shall have used commercially reasonable best efforts be required to obtain repeat, or cause any Loan Party to repeat, any such Restructuring CHOW Approval and such failure, either individually or actions in the aggregateevent that any Mortgaged Property is transferred to another Loan Party, could not reasonably be expected so long as such Mortgaged Property remains subject to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals perfected or recorded Lien as promptly as practicablerequired by this Section 5.14(b).
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Each Loan Party shall ensure enter into, and shall cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements with respect to each deposit, securities, commodity or similar account (other than Excluded Accounts) maintained by such Loan Party; provided that each such Loan Party shall have until, (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than such accounts of the ObligationsLoan Parties existing on the Effective Date, the Rollover Notes and any intercompany Indebtedness permitted pursuant date specified in Schedule 5.14 (or such later date as the Administrative Agent reasonably agrees to Section 6.1(bin writing) hereof); and (iiiii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii).
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures.
(g) The Credit Parties hereby agree as follows with respect to their Cash Management System: (i) within 30 days after any such accounts opened or acquired by any Loan Party following the Closing Effective Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within date that is 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after following the date on which the last check such account is issued on any of the First Union Concentration Accountsopened or acquired, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicableeach case, to comply with the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements provisions of this Agreement and the Pledge and Security AgreementSection 5.14(c).
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.
Appears in 1 contract
Certain Post-Closing Obligations. (a) For the period of 120 Each Loan Party shall promptly, and in any event no later than 60 days after following the Closing DateDate (which time period may be extended at the sole discretion of the Administrative Agent), deliver to the Collateral Agent: (A) ALTA mortgagee standard coverage title insurance policies or unconditional commitments therefor issued by the Title Company reasonably satisfactory to the Collateral Agent with respect to each Mortgaged Property (each, a “Title Policy”), in agreed upon amounts aggregating not less than the lesser of (x) $100,000,000 and (y) 110% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each Credit of which Title Policy
(1) shall include tie-in endorsements (to the extent available) and the following endorsements: (i) with respect to the Kensington Mine – Doing Business; First Loss; Aggregation; Variable Rate; Multiple Tax Parcel; Deletion of Arbitration; and Environmental; (ii) with respect to the Rochester Mine – Usury; Doing Business; First Loss; Aggregation; Variable Rate; Multiple Tax Parcel; Deletion of Arbitration; and Environmental; (c) with respect to the Wharf Mine – same as clause (ii) above, to the extent available in South Dakota; and (2) shall provide for such customary insurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence satisfactory to the Collateral Agent that the applicable Loan Party shall use has (1) delivered to the Title Company all its commercially reasonable best efforts to obtain a Landlord Consent certificates and Estoppel and, upon receipt of same, executed affidavits required by the applicable landlord, Title Company in connection with the issuance of the applicable Credit Party shall deliver Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions in title report issued by the Title Company with respect of each Leasehold Property (other thereto, dated not more than those in respect of which such has already been delivered 30 days prior to the Closing Date pursuant (or such earlier date as the Collateral Agent may agree) and copies of all recorded documents listed as exceptions to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed title or otherwise referred to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the abovetherein, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii).
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except to the extent such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures.
(g) The Credit Parties hereby agree as follows with respect to their Cash Management System: (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance reasonably satisfactory to the Joint Collateral Agent.
Appears in 1 contract
Certain Post-Closing Obligations. (a) For the period of 120 days after the Closing Date, each Credit Party Company shall use all its commercially reasonable best efforts to obtain obtain, and in any event prior to any Credit Date shall have obtained, a Landlord Consent and Estoppel and, upon receipt of same, executed by the applicable landlord, the applicable Credit Party shall deliver a fully executed and notarized Mortgage in proper form for recording in all appropriate places in all appropriate jurisdictions Personal Property Collateral Access Agreement in respect of each Leasehold Property in which Collateral financed with the proceeds of Loans made on such Credit Date is or is to be located (other than those in respect of which such has already been delivered prior to the Closing Effective Date pursuant to Section 3.1(lthe Existing Credit Agreement)). Each Credit Party shall at all times take all actions necessary to ensure that all Collateral at any Leasehold Property is subject to and specifically covered by a Landlord Personal Property Collateral Access Agreement (with any modifications, amendments or waivers thereof as the Syndication Agent and Administrative Agent shall, in their sole discretion, approve subject to the remaining provisions of this Section) between Holdings or its relevant Domestic Subsidiary and the then current landlord of such Leasehold Property. Following the Effective Date, the Administrative Agent shall give its approval for any Landlord Personal Property Collateral Access Agreement in respect of any Leasehold Property occupied by Holdings or any of its Domestic Subsidiaries as of the Effective Date and delivered to the Administrative Agent for execution which is in the standard form exhibited to this Agreement, PROVIDED that a Landlord Personal Property Collateral Access Agreement shall also be acceptable to the Administrative Agent in the event that (i) it deviates from such standard form only to provide for any of (1) delivery of all requisite notices to the Collateral Agent and/or to CT Corporation (with an agreement of CT Corporation to forward same to Collateral Agent by overnight mail immediately upon receipt) including satisfactory notice prior to any termination of any relevant lease, (2) at least 30 days access by the Collateral Agent to remove the Collateral (an initial 15 day period renewable for a further 15 days, with the requirement to pay base rent and additional charges (on a non-holdover basis) payable under the applicable lease on a pro rated basis in respect of the second such period being acknowledged acceptable) and (3) such other amendments or modifications as may be approved by 89 the Administrative Agent and the Syndication Agent in their sole discretion; and (ii) Holdings shall have deposited into the Collateral Access Deposit Account an amount equal to 200% of the aggregate of the monthly base rent and other regular monthly charges payable under the applicable lease (the "COLLATERAL ACCESS DEPOSIT") in respect of each such Landlord Personal Property Collateral Access Agreement which contains deviations from the standard form exhibited to this Agreement which are permitted under clause (i) above. The proceeds of the Collateral Access Deposit Account shall be held in accordance with the terms of the Collateral Access Deposit Agreement but shall be used only (i) to indemnify the Administrative Agent in respect of costs and expenses incurred by it in enforcing or protecting its security interests in Collateral, or (ii) to the extent permitted by the Holdings Senior Notes, following the occurrence and during the continuance of an Event of Default, in discharging the Obligations. The unused balance, if any, in the Collateral Access Deposit Account shall be refunded to the Holdings upon final repayment of all Obligations. On the Effective Date and on each anniversary of the Effective Date, Holdings or Company shall make an additional payment into the Collateral Access Deposit Account equal to the greater of (i) zero and (ii) the difference between (x) 200% of the aggregate total of the one month base rents and other regular monthly charges then payable in relation to all Leasehold Properties in respect of which Collateral Access Deposits have been made, and (y) the aggregate balance of the Collateral Access Deposit Account. It is hereby agreed that references in this Section 5.15(a) to "commercially reasonable best effortsmonthly base rent and other regular monthly charges payable" shall not shall, in calculating the amount of any Collateral Access Deposit or any additional payment with respect thereto, be construed as being the greater of (i) such sums as are provided for in the relevant lease to require be paid by the payment lessee, or (ii) such corresponding sums as are provided for in the relevant lease or the relevant Landlord Personal Property Collateral Access Agreement to be paid by any Credit Party the Collateral Agent (re-calculated if necessary on a monthly basis). Within 15 Business Days of any fee the Effective Date, the Company shall deliver (i) a notice to each landlord (and, CT Corporation, if such entity is named as the recipient of notices in the relevant Landlord Personal Property Collateral Access Agreement or other consideration for the applicable lease) with which a Landlord Personal Property Collateral Access Agreement is in place, notifying such landlord (and, if applicable, CT Corporation) of the change of Collateral Agent on the Effective Date and advising of the new notice address of such successor Collateral Agent and (ii) a duly executed Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlordsPersonal Property Collateral Access Agreement with respect to the Company's Leasehold Property at Concord, CA.
(b) Promptly At all times following the Closing Date Effective Date, Holdings shall immediately make capital contributions to Company in amount by which the aggregate amount of Cash and in Cash Equivalents at any event within 180 days thereaftertime held by Holdings (including for the avoidance of doubt, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation proceeds of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval Effective Date Transactions) exceeds $100,000,000. Holdings shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and ensure at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned all Cash and Cash Equivalents held by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii).
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, in favor of the Joint Collateral Agent in respect of the Health Care Facilities it are subject to the Mortgage Loans listed as items 1 a valid and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(e) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create in favor of Joint Collateral Agent, for the benefit of Secured Parties, a valid, perfected First Priority security interest in favor of the Capital Stock Collateral Agent for the benefit of the Senior Lenders and, subject to the provisions of Section 7A, the Holdings Term Loan Lenders. Company and each Joint Venture in which any other Credit Party had an interest as of the Closing Dateshall at all times ensure that all Cash and Cash Equivalents held by it are, except to the extent permitted by the Holdings Senior Notes, subject to a valid and perfected First Priority security interest in favor of the Collateral Agent for the benefit of the Senior Lenders and, subject to the provisions of Section 7A, the Holdings Term Loan Lenders; provided that, notwithstanding the 90 foregoing, Cash and Cash Equivalent of up to $1,000,000 held in any one account and up to $3,000,000 in aggregate for all Credit Parties shall not be required to be subject to such security interest was granted on the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Venturesinterests.
(gc) The Credit Parties hereby agree as follows On or prior to the Effective Date, Holdings shall have made a Collateral Access Deposit with respect to their Cash Management System: (i) within the Leasehold Property at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇. Within 30 days after Business Days of the Closing Effective Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts Company shall obtain and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than deliver to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which the last check is issued on any of the First Union Concentration Accounts, the Credit Parties shall close such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established Administrative Agent a new investment account with a financial institution located in the continental United States and Landlord Personal Property Collateral Access Agreement with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, such Leasehold Property. Subject to the UCCtimely compliance with this Section 5.15(c); provided, however, that in the event the such investment account has not been established Senior Lenders hereby waive any Default or Event of Default which shall have occurred and subjected be continuing with respect to the Joint Collateral AgentCompany's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited failure to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting comply with the requirements of this Agreement and or the Pledge and Security AgreementExisting Credit Agreement in connection with such Leasehold Property.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Focal Communications Corp)
Certain Post-Closing Obligations. (a) For Execute and deliver the documents and complete the tasks set forth on Schedule 5.15, in each case within the time limits specified therein (or such longer period of time acceptable to the Administrative Agent).
(b) The Collateral Agent shall receive from the applicable Loan Parties (x) within 120 days after (or such longer period of time acceptable to the Administrative Agent in its sole discretion) following the Closing Date, with respect to each Credit Party shall use all its commercially reasonable best efforts to obtain a Landlord Consent and Estoppel and, upon receipt of same, executed Mortgaged Property designated by the applicable landlordBorrower in order to eliminate any Deficiency, and (y) in the applicable Credit Party shall deliver case of Real Property acquired after the Closing Date and designated by the Borrower to be Perfected Mortgaged Property, within 120 days (or such longer period of time acceptable to the Administrative Agent in its sole discretion) following such designation, in each case the following documents and instruments:
(i) a fully executed Mortgage duly authorized and notarized Mortgage executed, in proper form for recording in all appropriate places in all appropriate jurisdictions in respect the recording office of each Leasehold jurisdiction where such Mortgaged Property (other than those to be encumbered thereby is situated, in respect of which such has already been delivered prior to the Closing Date pursuant to Section 3.1(l)), it being acknowledged and agreed that "commercially reasonable best efforts" shall not be construed to require the payment by any Credit Party of any fee or other consideration for such Landlord Consent and Estoppel other than reimbursement of legal expenses actually incurred by landlords.
(b) Promptly following the Closing Date and in any event within 180 days thereafter, the Company and its Guarantor Subsidiaries shall have obtained all Restructuring CHOW Approvals necessary or reasonable advisable (in the Administrative Agent's or Syndication Agent's judgment) in connection with the confirmation, consummation and implementation favor of the Plan of Reorganization provided that failure to obtain any Restructuring CHOW Approval shall not be deemed to be a failure to comply with this provision to the extent that the Credit Parties shall have used commercially reasonable best efforts to obtain such Restructuring CHOW Approval and such failure, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Notwithstanding the above, each applicable Credit Party will use all its commercially reasonable best efforts to obtain such approvals as promptly as practicable.
(c) Within 45 days following the Closing Date and at all times thereafter, each Credit Party shall ensure that (i) the Capital Stock of each PHCMI Debtor shall be wholly owned by another PHCMI Debtor or by a Guarantor Subsidiary which shall not engage in any business activities or own any assets or properties other than the Capital Stock of such PHCMI Debtor and otherwise as incident to its existence as a holding company, (ii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with respect to any Indebtedness (other than the Obligations, the Rollover Notes and any intercompany Indebtedness permitted pursuant to Section 6.1(b) hereof); and (iii) any Guarantor Subsidiary which is the direct parent of a PHCMI Debtor shall not have any employees, material Contractual Obligations, Investments, accounts, liabilities, claims or assets other then incidental to its existence as a holding Company.
(d) Each Credit Party shall use all its commercially reasonable best efforts to obtain ALTA mortgage title insurance policies reasonably satisfactory to Administrative Agent and Collateral Monitoring Agent in respect of each Closing Date Mortgaged Property which is a fee interest and in respect of which such a policy was not delivered pursuant to Section 3.1(l)(iii).
(e) Promptly upon request by the Administrative Agent, each Credit Party shall use all its commercially reasonable best efforts to deliver Mortgages, for the benefit of the Secured Parties, together with such other instruments as shall be necessary or appropriate (in favor the reasonable judgment of the Joint Collateral Agent in respect of the Health Care Facilities subject to the Mortgage Loans listed as items 1 and 2 on Schedule 6.6(A). It hereby is acknowledged that nothing in this Section 5.17(eAdministrative Agent) shall necessitate a prepayment of such Mortgage Loans not otherwise intended by the relevant Credit Parties. Following the Closing Date, no Credit Party shall grant any other Lien in respect of such Health Care Facilities.
(f) For the period of 120 days after the Closing Date, each Credit Party shall use all its commercially reasonable best efforts to create a Lien under applicable law, all of which shall be in favor of Joint form and substance reasonably satisfactory to Collateral Agent, for which Mortgage and other instruments shall be effective to create and/or maintain a first priority Lien on such Mortgaged Property, as the benefit of Secured Partiescase may be, subject to no Liens other than Permitted Liens and Permitted Encumbrances applicable to such Mortgaged Property;
(ii) a validfully paid American Land Title Association Lender’s Extended Coverage title insurance policy, perfected First Priority security interest with endorsements and in the Capital Stock of each Joint Venture in which any Credit Party had an interest as of the Closing Date, except amounts reasonably acceptable to the extent Administrative Agent, issued by a title insurer reasonably acceptable to the Administrative Agent, insuring the Mortgage to be a valid first and subsisting Lien on such security interest was granted Mortgaged Property, free and clear of all defects and encumbrances, other than Permitted Encumbrances; provided however that such title insurance policy may include such general mechanics’ lien exceptions as the title insurer(s) may require, so long as such title insurance policy does not include a title exception identifying any specifically recorded mechanics’ lien that does not constitute a Permitted Encumbrance;
(iii) American Land Title Association/American Congress on Surveying and Mapping form plat of survey or such other form plat of survey as is reasonably acceptable to the Administrative Agent, for which all necessary fees (where applicable) have been paid, and dated no more than 90 days before (x) the Closing Date by delivering to the Joint Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached to the Pledge and Security Agreement, together with all Supplements to Schedules thereto, reflecting such Pledged Stock. Without limitation, following the Closing Date, no Credit Party shall grant any other Lien in respect of the Capital Stock in such Joint Ventures.
or (gy) The Credit Parties hereby agree as follows with respect to their Cash Management System: (i) within 30 days after the Closing Date, the Credit Parties will have arranged for the Concentration Accounts at First Union National Bank to be swept on a daily basis into one or more of the JPMorgan Chase Bank Concentration Accounts and will cease issuing checks, ACH credits or other transfers from the First Union Concentration Accounts, other than to the JPMorgan Chase Concentration Accounts; (ii) within 90 days after the Closing Date, the Credit Parties will have fully transitioned cash sweeps from the Local Accounts (as defined in Schedule 4.29) previously swept into the First Union Concentration Accounts to one or more JPMorgan Chase Concentration Accounts, and will make no further cash sweeps into the First Union Concentration Accounts; (iii) within 210 days after the date on which a Mortgage in respect thereof is required to be delivered hereby (or such other dates as shall be reasonably acceptable to the last check is issued on any Administrative Agent), certified to the Administrative Agent and the issuer of the First Union Concentration Accounts, the Credit Parties shall close Mortgage Policy pertaining to such Concentration Accounts; (iv) within 30 days after the Closing Date, the Credit Parties will have established a new investment account with a financial institution located in the continental United States and with respect to which account the Company has taken all actions necessary to establish the Joint Collateral Agent's "control" (within the meaning of Section 8-106 and 9-106 or 9-104, as applicable, to the UCC); provided, however, that in the event the such investment account has not been established and subjected to the Joint Collateral Agent's control within the time required in this clause (iv), and until such actions have been taken, the investment of funds in the JPMorgan Concentration Accounts shall be limited to the investment thereof through a sweep account attached to, and part of, the JPMorgan Chase Concentration Account that is covered by blocked account control agreement meeting the requirements of this Agreement and the Pledge and Security Agreement.
(h) Within 30 days following the Closing Date, each Credit Party shall use its commercially reasonable best efforts to deliver to the Joint Collateral Agent the originally executed promissory notes evidencing the Pledged Debt listed on Schedule 4.4(A)(5)(B) to the Pledge and Security Agreement ("Original Notes"); provided, however, in the event an Original Note cannot be located, the Credit Parties shall use commercially reasonable best efforts to cause a replacement originally executed promissory note evidencing the applicable Pledged Debt to be reissued by the maker thereof("Replacement Notes") and delivered such Replacement Note to the Joint Collateral Agent within 30 days following the Closing Date together with a lost note affidavit for the Original Note, in form and substance satisfactory to the Joint Collateral Agent.Mortgaged Property in
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