Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans and performance of all other Obligations of the Borrower and the Guarantors to the Lender, the Administrative Agent or the Collateral Agent under this Agreement, the Term Loans, the Intercreditor Agreements and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, subject to the terms of the Intercreditor Agreements. The Administrative Agent and the Borrower hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent and the Lenders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Lender consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor Agreements, and authorizes and directs the Administrative Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement and of the Term Loans secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties. (b) Notwithstanding the foregoing, (i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency); (ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and (iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock). (c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets. (d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries. (e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement. (f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 4 contracts
Sources: Credit Agreement (ATD Corp), Incremental Amendment (American Tire Distributors Holdings, Inc.), Incremental Amendment (ATD Corp)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest (including Additional Interest, if any) on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (including Additional Interest, if any) on the Term Loans Notes and payment and performance of all other Obligations of the Borrower Issuer and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Collateral Agent under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Issuer hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for its benefit and the benefit of the Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act shall control. The Borrower Issuer shall deliver to the Collateral Agent copies of all documents filed pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock and other securities of the Restricted Subsidiaries Issuer or any Subsidiary of the Borrower Issuer that are owned by the Borrower Issuer or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock and other securities can secure the Term Loans Notes and Pari Passu Lien Indebtedness without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agencyagency)(the “Rule 3-16 Exception”);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer (if at such time the Issuer satisfies the requirements of Section 4.03 by furnishing information relating to Holdings (or any Restricted parent entity of Holdings)), or of any Subsidiary (other than of the Borrower) Issuer, due to the fact that the Issuer’s or such Subsidiary’s Capital Stock and other securities secure the Term LoansNotes and/or Pari Passu Lien Indebtedness, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed not to be part of the Collateral, Collateral (but only to the extent necessary to not be subject to such requirement (requirement) and in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or a holder of Pari Passu Lien Indebtedness, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) the Issuer’s or such Subsidiary’s Capital Stock and other securities to secure the Term Loans Notes and/or Pari Passu Lien Indebtedness in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer or such Subsidiary, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed to be a part of the Collateral (but only to the extent necessary to not be permitted without becoming subject to any such financial statement requirement (in requirements). In such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or holders of Pari Passu Lien Indebtedness, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to Stock and other securities. Notwithstanding the limitations described in Section 12.01(b)foregoing, the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting such Capital Stock and 65% of excluded as Collateral under the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall Rule 3-16 Exception will not be required to obtain any landlord waivers, estoppels or excluded from the collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL securing the Senior Secured Credit Facilities as a result of being excluded as Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 3 contracts
Sources: Indenture (APX Group Holdings, Inc.), Indenture (APX Group Holdings, Inc.), Indenture (APX Group Holdings, Inc.)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans when and as the same shall be due and payable, whether on an Interest Payment Dateinterest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans and performance of all other Obligations of the Borrower and the Guarantors to the LenderLenders, the Administrative Agent or the Collateral Agent under this Agreement, the Term Loans, the Intercreditor Agreements Loans and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent and the Borrower hereby acknowledge and agree that subject to the Intercreditor Agreement, the Collateral Agent holds the Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent and the Lenders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsAgreement. Each Lender Lender, by extending Loans, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsAgreement, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. The It is hereby expressly acknowledged and agreed that, in doing so, the Administrative Agent and the Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Subject to the terms and provisions hereof, the Intercreditor Agreement and the Agreed Security Principles, the Borrower shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, 10.1(a) to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement and of the Term Loans secured hereby, according to the intent and purposes herein expressed. The Borrower Holdings shall, and shall cause the it’s Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsAgreement), in favor of the Collateral Agent for the benefit of the Secured Parties, subject only to Permitted Liens.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of Holdings and the Restricted Subsidiaries of the Borrower that are owned shall be bound by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock)Agreed Security Principles.
(c) In addition to the limitations described in Section 12.01(b)Each of Holdings, the Borrower and each Subsidiary of Holdings that is a Subsidiary Guarantor as of the Closing Date shall use its commercially reasonable efforts to complete on the Closing Date all filings and other similar actions required by the Collateral Documents in connection with the perfection of security interests in the Collateral of Holdings, the Borrower and such Subsidiary Guarantors as of the Closing Date; provided, that, if Holdings, the Borrower and such Subsidiary Guarantors are not able to complete such actions (other than the filing of Uniform Commercial Code and PPSA financing statements or equivalent filings in the Province of Quebec, which shall not include be completed on the Closing Date) on the Closing Date, Holdings, the Borrower and such Subsidiary Guarantor shall use their commercially reasonable efforts to complete such actions (i) with respect to fee owned real property that constitutes Collateral, within 120 days after the Closing Date or assets as to which soon thereafter as reasonably practicable (in the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value good faith determination of the security to be afforded thereby Borrower) and (ii) with respect to all other Collateral, within 90 days after the Excluded AssetsClosing Date or as soon thereafter as reasonably practicable (in the good faith determination of the Company), subject to the Agreed Security Principles, with respect to any assets owned by Coöperatie.
(d) In the case of any Foreign SubsidiaryEach Lender, the Collateral shall be limited to 100% by its acceptance of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender Loans, (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and Agreement, (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Intercreditor Agreement and (iii) authorizes and instructs the Collateral Agent on behalf of each holder of Priority Lien Obligations to enter into the Intercreditor AgreementAgreement as Collateral Agent on behalf of such holders of Priority Lien Obligations. The foregoing provisions of this Section 12.01(e10.1(d) are intended as an inducement to the holders Lenders of Indenture Noteholder Priority Lien Obligations to acquire offer the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 2 contracts
Sources: Second Lien Loan Agreement (SunOpta Inc.), Second Lien Loan Agreement (SunOpta Inc.)
Collateral and Collateral Documents. (a) The Trustee shall initially act as Collateral Agent (and is hereby appointed as Collateral Agent and the Trustee accepts such appointment) and, whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Collateral Documents, the Collateral Agent shall have all of the rights, immunities, indemnities and other protections granted to it and to the Trustee under this Indenture (in addition to those that may be granted to it under the terms of any Collateral Document or such other agreement or agreements).
(b) In order to secure the due and punctual payment of the principal of of, premium, if any, on and interest on on, the Term Loans Securities and the Guarantees thereof when and as the same shall be due and payable, whether on an Interest Payment Dateinterest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and the Guarantees thereof and performance of all other Obligations of Indenture Obligations, the Borrower Securities and the Guarantors to the LenderGuarantees thereof, the Administrative Agent or the Collateral Agent under this Agreement, the Term Loans, the Intercreditor Agreements and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured by first-priority Liens and security interests, in each case subject to Permitted Liens, on the Collateral, as provided in the Collateral DocumentsDocuments which the Issuer and the Guarantors, which define as the terms case may be, have entered into substantially concurrently with the execution of the Liens that secure Consent Agreement and will be secured by all Collateral hereafter delivered as required or permitted by this Indenture and the Term Loans and such other Obligations, subject to the terms of the Intercreditor AgreementsCollateral Documents. The Administrative Agent Issuer and the Borrower Guarantors hereby acknowledge and agree that the Collateral Agent holds shall hold the Collateral in trust for the benefit of all of the Collateral Agent, the Administrative Agent Holders and the LendersTrustee, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Lender consents Collateral Agent is hereby authorized to execute and agrees to the terms of deliver the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor Agreements, and authorizes and directs the Administrative Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewithDocuments. The Borrower Issuer shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Securities secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and Issuer shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Securities Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsCollateral Documents), in favor of the Collateral Agent for the benefit of the Secured Parties.
. The Issuer shall make all filings (bincluding filings of continuation statements and amendments to financing statements that may be necessary to continue the effectiveness of such financing statements) Notwithstanding and take all other actions as are necessary or required by the foregoing,
Collateral Documents to maintain (iat the sole cost and expense of the Issuer) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned security interest created by the Borrower or any Guarantor Collateral Documents in the Collateral (other than with respect to any Collateral the capital stock of the Borrower) shall constitute Collateral only security interest in which is not required to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X be perfected under the Securities Act (“Rule 3-16”Collateral Documents) (as a perfected security interest with the priority set forth in the Collateral Documents. Anything contained in this Section 14.01, 14.02 below or any other law, rule term or regulation) requiring separate financial statements provision of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due this Indenture to the fact that such Subsidiary’s Capital Stock secure the Term Loanscontrary notwithstanding, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part none of the Collateral, but only to the extent necessary to not be subject to such requirement (actions set forth in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part Schedule 7 of the Collateral but only Agreement shall be required to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock)taken.
(c) In addition to The Trustee and each Holder, by accepting the limitations described Securities and the Guarantees thereof, acknowledges that, as more fully set forth in Section 12.01(b)the Collateral Documents, the Collateral as now or hereafter constituted shall not include (i) property or assets as to which be held for the benefit of all the Holders, the Trustee and the Collateral Agent has notified any Guarantor in writing that it has reasonably determined and that the costs Lien of obtaining a security interest are excessive this Indenture and the Collateral Documents in relation to the value respect of the security Trustee, the Collateral Agent and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be afforded thereby taken thereunder. In the event of a conflict between the terms of this Indenture and (ii) the Excluded AssetsCollateral Documents, the Collateral Documents shall control.
(d) In the case Each Holder, by its acceptance of any Foreign SubsidiarySecurities and the Guarantees thereof, consents and agrees to the appointment of the Trustee as the initial Collateral Agent and to the terms of the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
Documents (e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound byincluding, and shall take no actions contrary towithout limitation, the provisions of providing for foreclosure) as the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement same may be in effect or may be amended from time to time in accordance with their terms and the holders of Indenture Noteholder Lien Obligations terms hereof and authorizes and directs the Collateral Agent to acquire perform its obligations and exercise its rights under the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor AgreementCollateral Documents in accordance therewith.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 2 contracts
Sources: Consent Agreement (Blyth Inc), Supplemental Indenture (Blyth Inc)
Collateral and Collateral Documents. (a) The In order to secure the due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and performance of all other Obligations obligations of the Borrower Company to the Holders or the Trustee under this Indenture and the Guarantors to the LenderSecurities, the Administrative Agent or Company, the Subsidiaries (other than Doe Run Peru and its Subsidiaries) and the Collateral Agent under have simultaneously, with the execution of this AgreementIndenture, the Term Loans, the Intercreditor Agreements and entered into the Collateral Documents, according pursuant to which each of the Company and its Subsidiaries has granted to the terms hereunder or thereunder, shall be secured as provided Collateral Agent for the benefit of the Trustee and the Holders a Lien on and security interest in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, is subject to and junior to the terms of the Intercreditor AgreementsSenior Lien, but is senior to all other Liens other than Permitted Liens, if any. The Administrative Collateral Agent and the Borrower Company hereby acknowledge and agree that the Collateral Agent holds the Collateral as a secured party or mortgagee, as the case may be, in trust for the benefit of the Collateral Agent, the Administrative Agent and the LendersTrustee, in each case its capacity as Trustee, and for the ratable benefit of the Holders pursuant to the terms of the Collateral Documents Documents. The Collateral Agent is hereby authorized and directed to enter into the Intercreditor Agreements. Agreement.
(b) Each Lender Holder, by accepting a Security, consents and agrees to all of the terms and provisions of the Collateral Documents (including the provisions providing for the possessionDocuments, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect from time to time or may be amended from time to time in accordance with their terms the provisions of the Collateral Documents and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents act as mortgagee or secured party with respect thereto.
(c) As set forth in and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower shall deliver to the Collateral Agent copies of all documents pursuant to governed by the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by among the next sentence Holders of this Section 12.01Securities, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents as now or any part thereof, as from time to time constituted, so as to render the same available hereafter constituted shall be held for the security equal and ratable benefit of this Agreement and the Holders of the Term Loans secured herebySecurities without preference, according to the intent and purposes herein expressed. The Borrower shallpriority or distinction of any thereof over any other by reason of difference in time of issuance, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintainsale or otherwise, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured PartiesSecurities.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Doe Run Resources Corp)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest (including Additional Interest, if any) on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (including Additional Interest, if any) on the Term Loans Notes and performance of all other Obligations of the Borrower Company and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Notes Collateral Agent under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Company hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for its benefits and the benefit of the Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act shall control. The Borrower Company shall deliver to the Notes Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0110.01, to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i1) the Capital Stock and other securities of a Subsidiary of the Restricted Subsidiaries of the Borrower Company that are owned by the Borrower Company or any Guarantor (other than the capital stock of the Borrower) shall constitute Notes Collateral only to the extent that such Capital Stock and other securities can secure the Term Loans Notes and Additional Parity Debt without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii2) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than of the Borrower) Company due to the fact that such Subsidiary’s Capital Stock and other securities secure the Term LoansNotes and Additional Parity Debt, then the Capital Stock and other securities of such Subsidiary shall automatically be deemed not to be part of the Collateral, Notes Collateral (but only to the extent necessary to not be subject to such requirement (requirement) and in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or a holder of Additional Parity Debt, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Notes Collateral); and
(iii3) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock and other securities to secure the Term Loans Notes and Additional Parity Debt in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock and other securities of such Subsidiary shall automatically be deemed to be a part of the Notes Collateral (but only to the extent necessary to not be subject to any such financial statement requirement (in requirements). In such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or holders of Additional Parity Debt, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiariesother securities.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Notes and payment and performance of all other Obligations of the Borrower Issuer and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Collateral Agent under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Issuer hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for its benefit and the benefit of the Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower Issuer shall deliver to the Collateral Agent copies of all documents filed pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock and other securities of the Restricted Subsidiaries Issuer or any Subsidiary of the Borrower Issuer that are owned by the Borrower Issuer or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock and other securities can secure the Term Loans Notes and Pari Passu Lien Indebtedness without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agencyagency)(the “Rule 3-16 Exception”);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer (if at such time the Issuer satisfies the requirements of Section 4.03 by furnishing information relating to Holdings (or any Restricted parent entity of Holdings)), or of any Subsidiary (other than of the Borrower) Issuer, due to the fact that the Issuer’s or such Subsidiary’s Capital Stock and other securities secure the Term LoansNotes and/or Pari Passu Lien Indebtedness, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed not to be part of the Collateral, Collateral (but only to the extent necessary to not be subject to such requirement (requirement) and in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or a holder of Pari Passu Lien Indebtedness, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) the Issuer’s or such Subsidiary’s Capital Stock and other securities to secure the Term Loans Notes and/or Pari Passu Lien Indebtedness in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer or such Subsidiary, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed to be a part of the Collateral (but only to the extent necessary to not be permitted without becoming subject to any such financial statement requirement (in requirements). In such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or holders of Pari Passu Lien Indebtedness, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to Stock and other securities. Notwithstanding the limitations described in Section 12.01(b)foregoing, the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting such Capital Stock and 65% of excluded as Collateral under the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall Rule 3-16 Exception will not be required to obtain any landlord waivers, estoppels or excluded from the collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL securing the Senior Secured Credit Facilities as a result of being excluded as Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Vivint Smart Home, Inc.)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Notes and performance of all other Obligations obligations of the Borrower Company and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Collateral Agent Trustee under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured by Liens granted in favor of and held by the Collateral Trustee on the Notes Priority Lien Collateral and the ABL Priority Lien Collateral as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligationsthe Guarantees, subject to the terms of the Intercreditor Agreements. The Administrative Agent Agreement and the Borrower hereby acknowledge Collateral Trust Agreement. Pursuant and agree that subject to the terms of the Intercreditor Agreement, (1) the Liens on the Notes Priority Lien Collateral Agent securing the Notes rank senior to the Liens on the Notes Priority Lien Collateral securing the ABL Debt Obligations and any future Subordinated Lien Obligations and (2) the Liens on the ABL Priority Lien Collateral securing the Notes rank junior to the Liens on the ABL Priority Lien Collateral securing the ABL Debt Obligations, but senior to the Liens on the ABL Priority Lien Collateral securing any future Subordinated Lien Obligations.
(b) The Collateral Trustee holds the Notes Priority Lien Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of the Collateral) and the Intercreditor Agreements as the same may be in effect or may be entered into and delivered to the Collateral Trustee and/or amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs (i) the Administrative Agent Collateral Trustee to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith and (ii) the Intercreditor Agreements Trustee to enter into the Collateral Trust Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. .
(c) The Borrower Company shall, and shall cause the Guarantors to, deliver to the Collateral Agent Trustee copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0113.01, to assure and confirm to the Collateral Agent Trustee the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
Collateral and Collateral Documents. (a) The In order to secure the due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and performance of all other Obligations obligations of the Borrower Company to the Holders or the Trustee under this Indenture and the Guarantors to the LenderSecurities, the Administrative Agent or Company and the Collateral Agent under have simultaneously (other than with respect to the Mortgages and any other Collateral Documents related to Collateral constituting Real Property) with the execution of this Agreement, the Term Loans, the Intercreditor Agreements and Indenture entered into the Collateral Documents, according pursuant to which the Company has granted to the terms hereunder or thereunder, shall be secured as provided Collateral Agent for the benefit of the Trustee and the Holders a first priority Lien on and security interest in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, subject to the terms of the Intercreditor AgreementsCollateral. The Administrative Collateral Agent and the Borrower Company hereby acknowledge and agree that the Collateral Agent holds holds, or with respect to the Mortgages will hold, the Collateral as a secured party or mortgagee, as the case may be, in trust for the benefit of the Collateral Agent, the Administrative Agent and the LendersTrustee, in each case its capacity as Trustee, and for the ratable benefit of the Holders pursuant to the terms of the Collateral Documents Documents. The Collateral Agent is hereby authorized and directed to enter into the Intercreditor Agreement. The Company shall execute and deliver to the Collateral Agent within 90 days after the Issue Date the Mortgages and all related filings pursuant to Section 10.02; provided, however, that the effect of, and the Intercreditor Agreements. Holders' remedy for, the Company's non-compliance with this sentence shall be limited to Section 4.01 of this Indenture and paragraph 1 of the Securities and such non-compliance shall not constitute a Default or Event of Default under this Indenture or the Securities.
(b) Each Lender Holder, by accepting a Security, consents and agrees to all of the terms and provisions of the Collateral Documents (including the provisions providing for the possessionDocuments, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect from time to time or may be amended from time to time in accordance with their terms the provisions of the Collateral Documents and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents act as mortgagee or secured party with respect thereto.
(c) As set forth in and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower shall deliver to the Collateral Agent copies of all documents pursuant to governed by the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by among the next sentence Holders of this Section 12.01Securities, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents as now or any part thereof, as from time to time constituted, so as to render the same available hereafter constituted shall be held for the security equal and ratable benefit of this Agreement and the Holders of the Term Loans secured herebySecurities without preference, according to the intent and purposes herein expressed. The Borrower shallpriority or distinction of any thereof over any other by reason of difference in time of issuance, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintainsale or otherwise, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured PartiesSecurities.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Doe Run Resources Corp)
Collateral and Collateral Documents. (a) The Company hereby appoints The Bank of New York Mellon Trust Company, N.A., to act as Collateral Agent, and the Collateral Agent shall have the privileges, powers and immunities as set forth herein and in the Collateral Documents. The due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Securities and performance of all other Obligations obligations of the Borrower and the Guarantors to the LenderCompany, the Administrative Agent Note Guarantors, the Trustee or the Collateral Agent under this AgreementIndenture, the Term LoansSecurities, the Intercreditor Agreements Agreement and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligationsobligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Company hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent and the LendersNoteholder Secured Parties, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsAgreement. Each Lender holder, by accepting a Security, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor AgreementsAgreement, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the TIA, the TIA shall control. The Borrower Company shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0111.1, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Securities secured hereby, according to the intent and purposes herein expressed. The Borrower Company shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts Company to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligationsobligations under the Securities, the Indenture and the Collateral Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsAgreement), in favor of the Collateral Agent for the benefit of the Noteholder Secured Parties.
(b) Notwithstanding . The Company shall, and shall cause the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower Company to, and each Subsidiary shall, make all filings (including filings of continuation statements and amendments to financing statements that may be necessary to continue the effectiveness of such financing statements) and take all other actions as are owned necessary or required by the Borrower or any Guarantor Collateral Documents to maintain (at the sole cost and expense of the Company and its Subsidiaries) the security interest created by the Collateral Documents in the Collateral (other than with respect to any Collateral the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary security interest in which is not required to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens perfected under the Collateral Documents such additional Capital Stock).
(cDocuments) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a perfected security interest are excessive in relation to with the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for priority set forth in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement subject only to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor AgreementPermitted Liens.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Notes and performance of all other Obligations obligations of the Borrower Company and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Collateral Agent Trustee under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured by Liens granted in favor of and held by the Collateral Trustee on the Notes Priority Lien Collateral and the ABL Priority Lien Collateral as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligationsthe Guarantees, subject to the terms of the Intercreditor Agreements. The Administrative Agent Agreement and the Borrower hereby acknowledge Collateral Trust Agreement. Pursuant and agree that subject to the terms of the Intercreditor Agreement, (1) the Liens on the Notes Priority Lien Collateral Agent securing the Notes and the Outstanding 2016 Notes rank senior to the Liens on the Notes Priority Lien Collateral securing the ABL Debt Obligations and any future Subordinated Lien Obligations and (2) the Liens on the ABL Priority Lien Collateral securing the Notes and the Outstanding 2016 Notes rank junior to the Liens on the ABL Priority Lien Collateral securing the ABL Debt Obligations, but senior to the Liens on the ABL Priority Lien Collateral securing any future Subordinated Lien Obligations.
(b) The Collateral Trustee holds the Notes Priority Lien Collateral in trust for the benefit of the Collateral AgentTrustee, the Administrative Agent Holders of the Notes, the holders of the Outstanding 2016 Notes and the Lenderstrustee for the Outstanding 2016 Notes, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of the Collateral) and the Intercreditor Agreements as the same may be in effect or may be entered into and delivered to the Collateral Trustee and/or amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs (i) the Administrative Agent Collateral Trustee to enter into the Collateral Documents by executing the Joinder Documents and to perform its obligations and exercise its rights thereunder in accordance therewith and (ii) the Intercreditor Agreements Trustee to enter into the Collateral Trust Agreement, including to execute and deliver the Collateral Trust Agreement Joinder Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith. Each Holder further directs the Trustee not to request any documents, filing or recordation described in Section 3.8(b)(3) of the Collateral Trust Agreement.
(c) The Borrower Company shall, and shall cause the Guarantors to, deliver to the Collateral Agent Trustee copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0113.01, to assure and confirm to the Collateral Agent Trustee the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Catalyst Paper Corp)
Collateral and Collateral Documents. (a) The In order to secure the due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, or at maturityMaturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and performance of all other Obligations obligations of the Borrower Company to the Holders or the Trustee under this Indenture and the Guarantors to the LenderSecurities, the Administrative Agent or Company, the Subsidiaries and the Collateral Agent under this Agreement, have immediately following the Term Loans, execution of the Intercreditor Agreements and Second Supplemental Indenture entered into the Collateral Documents, according pursuant to which the terms hereunder or thereunder, shall be secured as provided Company and the Subsidiaries have granted a first priority Lien (subject to certain exceptions expressly permitted by the applicable Collateral Documents) on and security interest in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, subject to the terms Collateral Agent for the pari passu benefit of (i) the Intercreditor Agreements. The Trustee and the Holders and (ii) the Administrative Agent, the Collateral Agent and the Borrower Lenders. The Company hereby acknowledge and agree confirms that the Collateral Agent holds the Collateral as a secured party, in trust for the benefit of the Collateral Trustee, in its capacity as trustee under this Indenture, and the Administrative Agent, in its capacity as agent under the Administrative Agent Credit Agreement, and for the equal and ratable benefit of the Holders of the Securities and the Lenders, in each case Lenders pursuant to the terms of the Collateral Documents Documents.
(b) As set forth in and the Intercreditor Agreements. Each Lender consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor Agreements, and authorizes and directs the Administrative Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower shall deliver to the Collateral Agent copies of all documents pursuant to governed by the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by among the next sentence Holders of this Section 12.01Securities, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement and of the Term Loans secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintainCollateral, as security for the ObligationsSecurities, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent as now or hereafter constituted shall be for the equal and ratable benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock Holders of the Restricted Subsidiaries Securities without preference, priority or distinction of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or thereof over any other lawby reason of difference in time of issuance, rule sale or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock)otherwise.
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Second Supplemental Indenture (Stewart Enterprises Inc)
Collateral and Collateral Documents. (a) The Trustee shall initially act as Collateral Agent and, whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under or pursuant to, the Collateral Documents, the Collateral Agent shall have all of the rights, immunities, indemnities and other protections granted to it and to the Trustee under this Indenture (in addition to those that may be granted to it under the terms of any Collateral Document or such other agreement or agreements).
(b) In order to secure the due and punctual payment of the principal of of, premium, if any, on and interest on on, the Term Loans Securities and the Guarantees thereof when and as the same shall be due and payable, whether on an Interest Payment Dateinterest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and the Guarantees thereof and performance of all other Obligations of obligations under this Indenture, the Borrower Securities and the Guarantors to the LenderGuarantees thereof, the Administrative Agent or the Collateral Agent under this Agreement, the Term Loans, the Intercreditor Agreements and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured by second-priority Liens and security interests, in each case subject to Permitted Liens, on the Collateral, as provided in the Collateral Documents which the Issuer and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral hereafter delivered as required or permitted by this Indenture and the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligations, subject to the terms of the Intercreditor Agreements. The Administrative Agent Issuer and the Borrower Guarantors hereby acknowledge and agree that the Collateral Agent holds shall hold the Collateral in trust for the benefit of all of the Collateral Agent, the Administrative Agent Holders and the LendersTrustee and the holders of Pari Passu Lien Indebtedness, if any, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Lender consents Collateral Agent is hereby authorized to execute and agrees to the terms of deliver the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor Agreements, and authorizes and directs the Administrative Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewithDocuments. The Borrower Issuer shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Securities secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and Issuer shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Securities Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsCollateral Documents), in favor of the Collateral Agent for the benefit of the Secured Parties.
. The Issuer shall make all filings (bincluding filings of continuation statements and amendments to financing statements that may be necessary to continue the effectiveness of such financing statements) Notwithstanding and take all other actions as are necessary or required by the foregoing,
Collateral Documents to maintain (iat the sole cost and expense of the Issuer) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned security interest created by the Borrower or any Guarantor Collateral Documents in the Collateral (other than with respect to any Collateral the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary security interest in which is not required to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens perfected under the Collateral Documents such additional Capital Stock)Documents) as a perfected security interest with the priority set forth in the Collateral Documents.
(c) In addition to The Trustee and each Holder, by accepting the limitations described Securities and the Guarantees thereof, acknowledges that, as more fully set forth in Section 12.01(b)the Collateral Documents, the Collateral as now or hereafter constituted shall not include (i) property or assets as to which be held for the benefit of all the Holders and the Trustee and the holders of Pari Passu Lien Indebtedness, if any, and that the Lien of this Indenture and the Collateral Agent has notified any Guarantor Documents in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value respect of the security Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be afforded thereby taken thereunder. In the event of a conflict between the terms of this Indenture and (ii) the Excluded AssetsCollateral Documents, the Collateral Documents shall control.
(d) In the case Each Holder, by its acceptance of any Foreign SubsidiarySecurities and the Guarantees thereof, consents and agrees to the terms of the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
Documents (e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound byincluding, and shall take no actions contrary towithout limitation, the provisions of providing for foreclosure) as the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the holders of Indenture Noteholder Lien Obligations Collateral Agent to acquire perform its obligations and exercise its rights under the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor AgreementCollateral Documents in accordance therewith.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (SFX Entertainment, INC)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest (including Additional Interest, if any) on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (including Additional Interest, if any) on the Term Loans Notes and performance of all other Indenture Obligations of the Borrower Issuer and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Notes Collateral Agent under this AgreementIndenture, the Term LoansNotes (excluding, for the Intercreditor Agreements avoidance of doubt, any Hedging Obligations and guarantees thereof secured under the ABL Facility) and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Issuer hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for the benefit of the Notes Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsAgreement. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor AgreementsAgreement, and authorizes and directs the Administrative Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the mandatory duties imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act shall control. The Borrower Subject to the terms and provisions hereof, the Issuer shall deliver to the Notes Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, 13.01 to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower Issuer shall, and shall cause the Restricted Subsidiaries of the Borrower Issuer to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Indenture Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsAgreement), in favor of the Notes Collateral Agent for the benefit of the Notes Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower Issuer that are is owned by the Borrower Issuer or any Guarantor (other than the capital stock Capital Stock of the BorrowerIssuer) shall constitute Notes Collateral only to the extent that such Capital Stock can secure the Term Loans Notes without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agencyGovernmental Agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agencyGovernmental Agency) of separate financial statements of any Restricted Subsidiary (other than the BorrowerIssuer) due to the fact that such Restricted Subsidiary’s Capital Stock secure secures the Term LoansNotes, then the Capital Stock of such Restricted Subsidiary shall automatically be deemed not to be part of the Notes Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder of the Notes, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Notes Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s the Capital Stock of a Restricted Subsidiary that was previously excluded to secure the Term Loans Notes in excess of the amount then pledged without the filing with the SEC (or any other governmental agencyGovernmental Agency) of separate financial statements of such Restricted Subsidiary, then the Capital Stock of such Restricted Subsidiary shall automatically be deemed to be a part of the Notes Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder of Notes, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b13.01(b), the Notes Collateral shall not include (i) property or assets as to which the Issuer has notified the Notes Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Notes Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign SubsidiariesSubsidiary.
(e) Each Lender Holder of the Notes, by its acceptance of the Notes, (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and Agreement, (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement and (iii) authorizes and instructs the Noteholder Collateral Agent (as defined in the Intercreditor Agreement) on behalf of each holder of Indenture Noteholder Lien Obligations (as defined in the Intercreditor Agreement) to enter into the Intercreditor Agreement as Noteholder Collateral Agent on behalf of such holders of Indenture Noteholder Lien Obligations. The foregoing provisions of this Section 12.01(e13.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans Notes and such Lenders Holders of Notes are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, notwithstanding anything to the Borrower contrary contained in this Indenture or the Collateral Documents, the Issuer and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by controlcontrol or possession in any collateral, other than stock pledges and control agreements relating to ABL CollateralCollateral delivery of, promissory notes, and control over letter of credit rights and commercial tort claimsrights, in each case not exceeding in excess of $5,000,000 1.0 million, (ii) take any action with respect to any intellectual property which is (x) not registered or registered outside of the United States Patent and Trademark Office or the United States Copyright Office (other than the filing of Uniform Commercial Code Financing Statements) or, (y) in respect of intellectual property registered in the United States Patent and Trademark Office or the United States Copyright Office, (1) not used in the business of the Issuer or any Guarantor and (2) immaterial to the Issuer and the Guarantors (as determined by Issuer in good faith), or (iiiii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (Cambium Learning Group, Inc.)
Collateral and Collateral Documents. (a) The Company hereby appoints The Bank of New York Mellon Trust Company, N.A., to act as Collateral Agent, and the Collateral Agent shall have the privileges, powers and immunities as set forth herein and in the Collateral Documents. The due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Securities and performance of all other Obligations obligations of the Borrower and the Guarantors to the LenderCompany, the Administrative Agent Note Guarantors, the Trustee or the Collateral Agent under this AgreementIndenture, the Term LoansSecurities, the Intercreditor Agreements Agreement and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans and such other Obligationsobligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Company hereby acknowledge and agree that the Collateral Agent holds the Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent and the LendersNoteholder Secured Parties, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsAgreement. Each Lender holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor AgreementsAgreement, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements Agreement and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the TIA, the TIA shall control. The Borrower Company shall deliver to the Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0111.1, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Securities secured hereby, according to the intent and purposes herein expressed. The Borrower Company shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts Company to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligationsobligations under the Securities, the Indenture and the Collateral Documents, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsAgreement), in favor of the Collateral Agent for the benefit of the Noteholder Secured Parties.
(b) Notwithstanding . The Company shall, and shall cause the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower Company to, and each Subsidiary shall, make all filings (including filings of continuation statements and amendments to financing statements that may be necessary to continue the effectiveness of such financing statements) and take all other actions as are owned necessary or required by the Borrower or any Guarantor Collateral Documents to maintain (at the sole cost and expense of the Company and its Subsidiaries) the security interest created by the Collateral Documents in the Collateral (other than with respect to any Collateral the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary security interest in which is not required to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens perfected under the Collateral Documents such additional Capital Stock).
(cDocuments) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a perfected security interest are excessive in relation to with the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for priority set forth in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement subject only to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor AgreementPermitted Liens.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Libbey Inc)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest (including Additional Interest, if any) on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (including Additional Interest, if any) on the Term Loans Notes and performance of all other Obligations of the Borrower Company and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Notes/Term Collateral Agent under this AgreementIndenture, the Term LoansNotes, the Intercreditor Agreements and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor Agreements. The Administrative Agent Trustee and the Borrower Company hereby acknowledge and agree that the Notes/Term Collateral Agent holds the Collateral in trust for the benefit of the Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor Agreements, and authorizes and directs the Administrative Notes/Term Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act shall control. The Borrower Company shall deliver to the Notes/Term Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall will do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0110.01, to assure and confirm to the Notes/Term Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower Company shall, and shall cause the Restricted Subsidiaries of the Borrower Company to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the ObligationsObligations under the Notes, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Notes/Term Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i1) the Capital Stock and other securities of the Restricted Subsidiaries of the Borrower Company that are owned by the Borrower Company or any Guarantor (other than the capital stock of the Borrower) shall will constitute Notes/Term Collateral only to the extent that such Capital Stock and other securities can secure the Term Loans Series A-1 Notes and the Series A-2 Debt without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii2) in the event that either Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the BorrowerCompany) due to the fact that such Subsidiary’s Capital Stock and other securities secure the Term LoansSeries A-1 Notes and/or the Series A-2 Debt, then the Capital Stock and other securities of such Subsidiary shall automatically be deemed not to be part of the Notes/Term Collateral, but only to the extent necessary to not be subject to such requirement (and, in such event, the Collateral Documents may be amended or modified, without the consent of any Lenderholder of the Series A-1 Notes and the Series A-2 Debt, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Notes/Term Collateral); and
(iii3) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock and other securities to secure the Term Loans Series A-1 Notes and the Series A-2 Debt in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock and other securities of such Subsidiary shall automatically be deemed to be a part of the Notes/Term Collateral but only to the extent necessary to not be subject to any such financial statement requirement (and, in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder of the Notes, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital StockStock and other securities).
(c) In addition to the limitations described in Section 12.01(b10.01(b), the Notes/Term Collateral shall will not include (i) property or assets as to which the Notes/Term Collateral Agent has notified any Guarantor Grantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Notes/Term Collateral shall will be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such first-tier Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Ahny-Iv LLC)
Collateral and Collateral Documents. (a) The In order to secure the due and punctual payment of the principal of and interest on the Term Loans Securities when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Term Loans Securities and performance of all other Obligations obligations of the Borrower Company to the Holders or the Trustee under this Indenture and the Guarantors to the LenderSecurities, the Administrative Agent or Company and the Collateral Agent under have simultaneously with the execution of this Agreement, the Term Loans, the Intercreditor Agreements and Indenture entered into the Collateral Documents, according pursuant to which the Company has granted to the terms hereunder or thereunder, shall be secured as provided Collateral Agent for the benefit of the Trustee and the Holders a second priority Lien on and security interest in the Collateral Documents, which define (such Lien ranking junior in priority only to the terms existing Lien on the Collateral for the benefit of the Liens that secure the Term Loans and holders of any outstanding Existing Securities). In addition, such other Obligations, subject second priority Lien granted to the terms Collateral Agent will be pari passu with the Lien granted to the trustee of the Intercreditor AgreementsVEBA Trust pursuant to the VEBA Mortgage and the VEBA Security Agreement; provided that at such time as no Existing Securities remain outstanding, the security interest in the Collateral granted to the Collateral Agent for the benefit of the Trustee and the Holders shall become a first priority Lien and the Lien granted to the VEBA Trustee pursuant to the VEBA Mortgage and the VEBA Security Agreement shall remain a second priority Lien, junior in priority to the Lien created by the Collateral Documents. The Administrative Collateral Agent and the Borrower Company hereby acknowledge and agree that the Collateral Agent holds the Collateral as a secured party or mortgagee, as the case may be, in trust for the benefit of the Collateral Agent, the Administrative Agent and the LendersTrustee, in each case its capacity as trustee, and for the ratable benefit of the Holders pursuant to the terms of the Collateral Documents Documents. The Collateral Agent is authorized and directed to enter into each of (i) the Intercreditor Agreements. Agreement and (ii) the VEBA Intercreditor Agreement.
(b) Each Lender Holder, by accepting a Security, consents and agrees to all of the terms and provisions of the Collateral Documents (including the provisions providing for the possessionDocuments, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect from time to time or may be amended from time to time in accordance with their terms the provisions of the Collateral Documents and this Agreement and the Intercreditor AgreementsIndenture, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents act as mortgagee or secured party with respect thereto.
(c) As set forth in and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower shall deliver to the Collateral Agent copies of all documents pursuant to governed by the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by among the next sentence Holders of this Section 12.01Securities, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents as now or any part thereof, as from time to time constituted, so as to render the same available hereafter constituted shall be held for the security equal and ratable benefit of this Agreement and the Holders of the Term Loans secured herebySecurities without preference, according to the intent and purposes herein expressed. The Borrower shallpriority or distinction of any thereof over any other by reason of difference in time of issuance, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintainsale or otherwise, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured PartiesSecurities.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower that are owned by the Borrower or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (Wci Steel Inc)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Notes and payment and performance of all other Obligations of the Borrower Issuer and the Guarantors to the Lender, the Administrative Agent Holders or the Collateral Agent under this Note Purchase Agreement, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Issuer hereby acknowledges and the Borrower hereby acknowledge and agree agrees that the Collateral Agent holds the Collateral in trust for its benefit and the benefit of the Collateral Agent, the Administrative Agent and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsDocuments. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement and the Intercreditor AgreementsNote Purchase Agreement, and authorizes and directs the Administrative Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower Issuer shall deliver to the Collateral Agent copies of all documents filed pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, to assure and confirm to the Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Note Purchase Agreement and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower shall, and shall cause the Restricted Subsidiaries of the Borrower to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Collateral Agent for the benefit of the Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock and other securities of the Restricted Subsidiaries Issuer or any Subsidiary of the Borrower Issuer that are owned by the Borrower Issuer or any Guarantor (other than the capital stock of the Borrower) shall constitute Collateral only to the extent that such Capital Stock and other securities can secure the Term Loans Notes and Pari Passu Lien Indebtedness without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agencyagency)(the “Rule 3-16 Exception”);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer (if at such time the Issuer satisfies the requirements of Section 9.03 by furnishing information relating to any Restricted parent entity of the Issuer), or of any Subsidiary (other than of the Borrower) Issuer, due to the fact that the Issuer’s or such Subsidiary’s Capital Stock and other securities secure the Term LoansNotes and/or Pari Passu Lien Indebtedness, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed not to be part of the Collateral, Collateral (but only to the extent necessary to not be subject to such requirement (requirement) and in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or a holder of Pari Passu Lien Indebtedness, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) the Issuer’s or such Subsidiary’s Capital Stock and other securities to secure the Term Loans Notes and/or Pari Passu Lien Indebtedness in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of the Issuer or such Subsidiary, then the Capital Stock and other securities of the Issuer or of such Subsidiary shall automatically be deemed to be a part of the Collateral (but only to the extent necessary to not be permitted without becoming subject to any such financial statement requirement (in requirements). In such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder or holders of Pari Passu Lien Indebtedness, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to Stock and other securities. Notwithstanding the limitations described in Section 12.01(b)foregoing, the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Collateral shall be limited to 100% of the non-voting such Capital Stock and 65% of excluded as Collateral under the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement. The foregoing provisions of this Section 12.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans and such Lenders are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall Rule 3-16 Exception will not be required to obtain any landlord waivers, estoppels or excluded from the collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL securing the Senior Secured Credit Facilities as a result of being excluded as Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest on the Term Loans Notes and performance of all other Indenture Obligations of the Borrower Issuer and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Notes Collateral Agent under this AgreementIndenture, the Term Loans, the Intercreditor Agreements Notes and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Indenture Obligations, subject to the terms of the Intercreditor AgreementsAgreement. The Administrative Agent Trustee and the Borrower Issuer hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for the benefit of the Notes Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor AgreementsAgreement.
(b) Beyond the exercise of reasonable care in the custody thereof, the Trustee and the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Trustee and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Without limiting the foregoing, the Notes Collateral Agent shall, at the direction and cost of the Issuer or the Holders of a majority in principal amount of the Notes then outstanding, and subject to its rights hereunder including, without limitation, Section 13.11(c), file a financing or continuation statement or record a document or instrument prepared by the Issuer or the Holders of a majority in principal amount of the Notes then outstanding in any public office specified by such person or persons. In the case of a direction by the Holders, such direction shall be conveyed through the Trustee. The Trustee and the Notes Collateral Agent shall each be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which each accords its own property and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Trustee or Notes Collateral Agent in good faith.
(c) The Trustee and the Notes Collateral Agent shall not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on their part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of the Issuer or the Guarantors to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. Without limiting the foregoing, the Notes Collateral Agent shall, at the direction and cost of the Issuer or the Holders of a majority in principal amount of the Notes then outstanding, and subject to its rights hereunder including, without limitation, Section 13.11(c), file a financing or continuation statement or record a document or instrument prepared by the Issuer or the Holders of a majority in principal amount of the Notes then outstanding in any public office specified by such person or persons. In the case of a direction by the Holders, such direction shall be conveyed through the Trustee. The Trustee shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Collateral Documents by the Issuer, the Guarantors or the Notes Collateral Agent.
(d) If in order to perfect the security interest of the Trustee or the Notes Collateral Agent in a deposit account or a securities account the Trustee or the Notes Collateral Agent is requested to enter into any control agreement, neither the Trustee and the Notes Collateral Agent shall not be required to enter into any such agreement that requires the Trustee or the Notes Collateral Agent to indemnify any Person from their own personal assets or that may involve the Notes Collateral Agent or the Trustee in personal liability.
(e) Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements Agreement as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor AgreementsAgreement, and authorizes and directs the Administrative Agent Trustee and/or the Notes Collateral Agent, as applicable, to enter into the Collateral Documents and Documents, the Intercreditor Agreements Agreement and any further intercreditor agreements required and to make the representations and warranties therein contained and to perform its obligations and exercise its rights thereunder in accordance therewith. The Borrower It is hereby expressly acknowledged and agreed that, in doing so, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Subject to the terms and provisions hereof and the Agreed Security Principles, the Issuer shall deliver to the Notes Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.01, 13.01 to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower Company shall, and shall cause the Restricted Subsidiaries of the Borrower Company to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Indenture Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor AgreementsAgreement and the Agreed Security Principles), in favor of the Notes Collateral Agent for the benefit of the Notes Secured Parties, subject only to Permitted Liens.
(bf) Notwithstanding the foregoing,
(i) the Capital Stock of The Company and the Restricted Subsidiaries of the Borrower that are owned shall be bound by the Borrower or any Guarantor (other than the capital stock of the Borrower) and shall constitute Collateral only to the extent that such Capital Stock can secure the Term Loans without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed comply with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the Borrower) due to the fact that such Subsidiary’s Capital Stock secure the Term Loans, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any Lender, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock)Agreed Security Principles.
(cg) In addition to the limitations described in Section 12.01(b), the Collateral shall not include (i) property or assets as to which the Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value Each Holder of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign SubsidiaryNotes, the Collateral shall be limited to 100% by its acceptance of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender Notes, (i) consents to the subordination of Liens provided for in the Crossing Lien Intercreditor Agreement and Agreement, (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Intercreditor Agreement and (iii) authorizes and instructs the Notes Collateral Agent (as defined in the Intercreditor Agreement) on behalf of each holder of Parity Lien Obligations to enter into the Intercreditor Agreement as Notes Collateral Agent on behalf of such holders of Parity Lien Obligations. The foregoing provisions of this Section 12.01(e13.01(g) are intended as an inducement to the holders of Indenture Noteholder Parity Lien Obligations to acquire the Term Loans Notes and such Lenders Holders of Notes are intended third party beneficiaries of such provisions and of the Crossing Lien Intercreditor Agreement.
(f) In addition, the Borrower and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding of $5,000,000 or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Indenture (SunOpta Inc.)
Collateral and Collateral Documents. (a) The due and punctual payment of the principal of and interest (including Additional Interest, if any) on the Term Loans Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest (including Additional Interest, if any) on the Term Loans Notes and performance of all other Indenture Obligations of the Borrower Issuer and the Guarantors to the LenderHolders, the Administrative Agent Trustee or the Notes Collateral Agent under this AgreementIndenture, the Term LoansNotes, any Hedging Obligations related to the Notes and guarantees thereof (excluding, for the avoidance of doubt, any Hedging Obligations and guarantees thereof secured under the ABL Facility), the Intercreditor Agreements and the Collateral Documents, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents, which define the terms of the Liens that secure the Term Loans Notes and such other Obligations, subject to the terms of the Intercreditor Agreements. The Administrative Agent Trustee and the Borrower Issuer hereby acknowledge and agree that the Notes Collateral Agent holds the Collateral in trust for the benefit of the Notes Collateral Agent, the Administrative Agent Trustee and the LendersHolders, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements. Each Lender Holder, by accepting a Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the possession, use, release and foreclosure of Collateral) and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and this Agreement Indenture and the Intercreditor Agreements, and authorizes and directs the Administrative Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements and to perform its obligations and exercise its rights thereunder in accordance therewith; provided, however, that if any of the provisions of the Collateral Documents limit, qualify or conflict with the duties imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act shall control. The Borrower Issuer shall deliver to the Notes Collateral Agent copies of all documents pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be reasonably required by the next sentence of this Section 12.0113.01, to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Agreement Indenture and of the Term Loans Notes secured hereby, according to the intent and purposes herein expressed. The Borrower Issuer shall, and shall cause the Restricted Subsidiaries of the Borrower Issuer to, use its and their commercially reasonable efforts to take any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Indenture Obligations, a valid and enforceable perfected Lien and security interest in and on all of the Collateral (subject to the terms of the Intercreditor Agreements), in favor of the Notes Collateral Agent for the benefit of the Notes Secured Parties.
(b) Notwithstanding the foregoing,
(i) the Capital Stock of the Restricted Subsidiaries of the Borrower Issuer that are owned by the Borrower Issuer or any Guarantor (other than the capital stock of the BorrowerIssuer) shall constitute Notes Collateral only to the extent that such Capital Stock can secure the Term Loans Notes without Rule 3-16 of Regulation S-X under the Securities Act (“Rule 3-16”) (or any other law, rule or regulation) requiring separate financial statements of such Subsidiary to be filed with the SEC (or any other governmental agency);
(ii) in the event that Rule 3-16 requires or is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Restricted Subsidiary (other than the BorrowerIssuer) due to the fact that such Subsidiary’s Capital Stock secure the Term LoansNotes, then the Capital Stock of such Subsidiary shall automatically be deemed not to be part of the Notes Collateral, but only to the extent necessary to not be subject to such requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder of the Notes, to the extent necessary to release the security interests in the shares of Capital Stock and other securities that are so deemed to no longer constitute part of the Notes Collateral); and
(iii) in the event that either Rule 3-16 is amended, modified or interpreted by the SEC to permit (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would permit) such Subsidiary’s Capital Stock to secure the Term Loans Notes in excess of the amount then pledged without the filing with the SEC (or any other governmental agency) of separate financial statements of such Subsidiary, then the Capital Stock of such Subsidiary shall automatically be deemed to be a part of the Notes Collateral but only to the extent necessary to not be subject to any such financial statement requirement (in such event, the Collateral Documents may be amended or modified, without the consent of any LenderHolder of Notes, to the extent necessary to subject to the Liens under the Collateral Documents such additional Capital Stock).
(c) In addition to the limitations described in Section 12.01(b13.01(b), the Notes Collateral shall not include (i) property or assets as to which the Notes Collateral Agent has notified any Guarantor in writing that it has reasonably determined that the costs of obtaining a security interest are excessive in relation to the value of the security to be afforded thereby and (ii) the Excluded Assets.
(d) In the case of any Foreign Subsidiary, the Notes Collateral shall be limited to 100% of the non-voting Capital Stock and 65% of the voting Capital Stock of such Foreign Subsidiaries.
(e) Each Lender Holder of the Notes, by its acceptance of the Notes, (i) consents to the subordination of Liens provided for in the Crossing Lien Subordination and Intercreditor Agreement and Agreement, (ii) agrees that it shall be bound by, and shall take no actions contrary to, the provisions of the Crossing Lien Subordination and Intercreditor Agreement and (iii) authorizes and instructs the Noteholder Collateral Agent (as defined in the Lien Subordination and Intercreditor Agreement) on behalf of each holder of Indenture Noteholder Lien Obligations (as defined in the Lien Subordination and Intercreditor Agreement) to enter into the Lien Subordination and Intercreditor Agreement as Noteholder Collateral Agent on behalf of such holders of Indenture Noteholder Lien Obligations. The foregoing provisions of this Section 12.01(e13.01(e) are intended as an inducement to the holders of Indenture Noteholder Lien Obligations to acquire the Term Loans Notes and such Lenders Holders of Notes are intended third party beneficiaries of such provisions and of the Crossing Lien Subordination and Intercreditor Agreement.
(f) In addition, the Borrower Issuer and its Subsidiaries shall not be required to obtain any landlord waivers, estoppels or collateral access letters and shall not be required to (i) take actions to perfect by control, other than stock pledges and control agreements relating to ABL Collateral, promissory notes, letter of credit rights and commercial tort claims, in each case not exceeding in excess of $5,000,000 5 million or (ii) take any actions under any laws outside of the United States to grant, perfect or enforce any security interest.
Appears in 1 contract
Sources: Senior Secured Notes Indenture (American Tire Distributors Holdings, Inc.)