Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered. (b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE (a) above, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on or before June 29, 2002, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction. (c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of Australia.
Appears in 1 contract
Sources: Credit Agreement (Hyster Overseas Capital Corp LLC)
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliverNot later than fifteen (15) days after the acquisition by any Loan Party of any Material Real Property (or such longer period as Administrative Agent (at the direction of the Required Lenders) may agree in writing in its sole discretion), which Material Real Property would not automatically be subject to another Mortgage or Lien to Collateral Agent for the benefit of Lenders pursuant to preexisting Loan Documents, deliver to Administrative Agent a commitment for a standard ALTA 2006 form (or other form prescribed for use in the applicable jurisdiction) mortgagee policy of title insurance (with leasehold endorsement for leasehold estate, if applicable), copies of documents referred to therein as constituting encumbrances on such Material Real Property, a survey or mapping of such Material Real Property in a similar form as delivered on the Closing Date, copies of any leases, consents, and cause contracts pertaining to such Material Real Property, copies of the Borrower Subsidiaries purchase agreement and all related documents pursuant to execute which the Loan Party purchased such Material Real Property, including any final title commitment or title insurance policy, an environmental report and deliverany other studies, within reports, approvals, permits, evidence of compliance with Laws and the time periods set forth like obtained or provided to the Loan Party with respect to such items Material Real Property, evidence of the flood hazard status of such Material Real Property of the type and in the manner provided on the Closing ListDate, all agreements, documents and instruments designated such other information as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, Administrative Agent may reasonably request in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject evaluating a Mortgage with respect to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and deliveredMaterial Real Property.
(b) In addition If Administrative Agent has not given notice that it does not wish such Material Real Property to be subject to a Lien and not Mortgage in lieu favor of the rights and obligations Collateral Agent for the benefit of the parties under CLAUSE Secured Parties, not later than sixty (a60) abovedays after the acquisition by any Loan Party of any Material Real Property described in Section 5.16(a) above (or such longer period as Administrative Agent (at the direction of the Required Lenders) may agree in its sole discretion), shall cause such Material Real Property to be subject to a Lien and Mortgage in favor of the Collateral Agent for the benefit of the Secured Parties and take, or cause the relevant Loan Party to take such actions as shall be necessary or reasonably requested by the Administrative Agent to grant and perfect or record such Lien, and Mortgage in compliance with the Material Real Property Collateral Requirements, subject to the limitations set forth herein and the other Loan Documents.
(c) Within sixty (60) days after the reasonable request therefor by the Administrative Agent (or such longer period as Administrative Agent (at the direction of the Required Lenders) may agree in writing in its sole discretion), deliver to the Administrative Agent with respect to each jurisdiction where the aggregate amount Material Real Property, copies of Receivables owing by account debtors (eachtitle reports, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on abstracts or before June 29, 2002, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS")environmental assessment reports; provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect there shall be no obligation to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant deliver to the Administrative Agent any environmental assessment report whose disclosure to the Administrative Agent would require the consent of a Lien on all Property (Person other than EquipmentLoan Parties or their Subsidiaries if such consent cannot be reasonably obtained through commercially reasonable and diligent effort.
(d) Promptly following reasonable written request by the Administrative Agent or Collateral Agent (i) correct any mutually identified material defect or error that may be discovered in the execution, fixtures acknowledgment, filing or recordation of any Loan Document or other document or instrument relating to any Collateral, (ii) upon the Discharge of ABL Obligations (as defined in the Intercreditor Agreement) or the occurrence and Real Property) continuation of the Receivables Subsidiary. In the event that any jurisdiction where account debtors a Default or an Event of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completedDefault, take all actions required steps necessary to protect Collateral Agent’s security interest in the Collateral under CLAUSES (X) the Federal Assignment of Claims Act, the Uniform Commercial Code and all other applicable state or local Laws and deliver to Administrative Agent appropriately endorsed, any instrument or chattel paper connected with any Receivable arising out of any contract between any Loan Party and the United States, any state or any department, agency or instrumentality of any of them and (Yiii) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) abovedo, at any time and from time to timeexecute, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Personacknowledge, each Borrower agrees to duly execute and deliver, record, re-record, file, re-file, register and to cause its Subsidiaries to duly execute and deliver, re-register any and all such further acts, deeds, certificates, assurances, supplemental agreements, statements, assignments and transfers, instructions or documents relating to the Collateral, and other instruments and documents and take such further action as the Administrative Agent or Collateral Agent may reasonably deem desirable request from time to time in order to perfect and protect any Lien granted or purported to be granted pursuant to carry out more effectively the Loan Documents or to enable the Administrative Agent, in accordance with the terms purposes of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agentbut in each case, assign subject to the Administrative Agentlimitations set forth herein and in the other Loan Documents.
(e) Upon any automatic deemed amendment contemplated by clause (g) of Schedule 1.6(a) or Schedule 1.6(b), pursuant each Loan Party agrees to take any and all actions reasonably necessary to effectuate such amendments or modifications, including without limitation the execution of an assignment in form and substance satisfactory amendment to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of Australia.
Appears in 1 contract
Sources: Term Loan Credit and Guaranty Agreement (New Enterprise Stone & Lime Co., Inc.)
Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and deliver, and shall cause each Subsidiary of the Borrower Subsidiaries (other than the Excluded MLP Entities) to take such actions and to execute and deliver, within the time periods set forth with respect to deliver such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have reasonably require to ensure that the right to establish appropriate Availability Reserves based Administrative Agent or Collateral Agent on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu behalf of the rights Secured Parties shall, at all times, have received currently effective duly executed Loan Documents granting Liens and obligations security interests in substantially all of the parties under CLAUSE assets of the Borrower and each Subsidiary of the Borrower (a) aboveother than the Excluded MLP Entities)(other than Excluded Assets), with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (eachincluding all capital stock, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES partnership, joint venture, membership interests, or other equity interests except for (i) any motor vehicle or other equipment that has a certificate of title and a fair market value of less than $50,000, and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on or before June 29, 2002, with respect those properties and assets as to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to which the Administrative Agent an opinion shall determine in its sole discretion (in consultation with the Borrower) that the costs of counsel, addressed obtaining such security interest are excessive in relation to the Administrative Agentvalue of the security to be afforded thereby. Without limiting the foregoing, the Lenders Borrower shall and shall cause each Subsidiary of the Issuing Bank, Borrower to subject any of their deposit accounts to a control agreement in form and substance reasonably satisfactory to the Administrative Agent andwithin 30 days of Administrative Agent’s request therefor.
(b) In connection with the actions required pursuant to the foregoing subsection (a), without limiting the generality Borrower shall and shall cause each Subsidiary of the foregoingBorrower (other than the Excluded MLP Entities) to execute and deliver such stock certificates, concluding thatblank stock powers, under the laws evidence of the Material Foreign Account Debtor Jurisdictioncorporate authorization, (i) the courts opinions of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice counsel, current valuations, evidence of law governing the Receivables (being Netherlands lawtitle, English lawand other documents, andand shall use commercially reasonable efforts to obtain third party consents, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would as shall be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower reasonably requested by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instrumentsAgent, in each case as the Administrative Agent may in form and substance reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant satisfactory to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor JurisdictionAgent.
(c) In addition to and not The Liens required by this Section 6.15 shall be first priority Liens in lieu favor of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge Agent for the benefit of the Secured Parties, subject to no other Liens except Permitted Liens of the type described in Section 7.01. The Liens required by this Section 6.15 shall be perfected Liens in favor of the Administrative Agent pursuant to a Pledge Agreement, 65.0% or Collateral Agent for the benefit of the Capital Stock Secured Parties in all collateral to the extent perfection has or will occur by (i) the filing of each first tier Subsidiary of any Domestic Borrower organized under a Uniform Commercial Code financing statement in the laws of Australia.relevant jurisdiction, (ii) possession or control or (iii) the
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and deliver, and shall cause each Subsidiary of the Borrower Subsidiaries (other than the Excluded MLP Entities) to take such actions and to execute and deliver, within the time periods set forth with respect to deliver such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall reasonably require to ensure that the Administrative Agent or Collateral Agent on behalf of the Secured Parties shall, at all times, have received currently effective duly executed Loan Documents granting Liens and security interests in substantially all of the right assets (other than Excluded Assets) of the Borrower and each Subsidiary of the Borrower (other than the Excluded MLP Entities), including all capital stock, partnership, joint venture, membership interests, or other equity interests except for (i) any motor vehicle or other equipment that has a certificate of title and a fair market value of less than $50,000, and (ii) those properties and assets as to establish appropriate Availability Reserves based on which the Administrative Agent shall determine in its sole discretion (in consultation with the Borrower) that the costs of obtaining such security interest are excessive in relation to the value of such Collateralthe security to be afforded thereby. Without limiting the foregoing, until such agreements, documents the Borrower shall and instruments with respect thereto are executed shall cause each Subsidiary of the Borrower to subject any of their deposit accounts to a control agreement in form and deliveredsubstance reasonably satisfactory to the Administrative Agent within 30 days of Administrative Agent’s request therefor.
(b) In addition connection with the actions required pursuant to the foregoing subsection (a), the Borrower shall and not in lieu shall cause each Subsidiary of the rights Borrower (other than the Excluded MLP Entities) to execute and obligations deliver such stock certificates, blank stock powers, evidence of corporate authorization, opinions of counsel, current valuations, evidence of title, and other documents, and shall use commercially reasonable efforts to obtain third party consents, as shall be reasonably requested by the Administrative Agent, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(c) The Liens required by this Section 6.15 shall be first priority Liens in favor of the parties under CLAUSE (a) aboveAdministrative Agent or Collateral Agent for the benefit of the Secured Parties, with respect subject to each jurisdiction where no other Liens except Permitted Liens of the aggregate amount type described in Section 7.01. The Liens required by this Section 6.15 shall be perfected Liens in favor of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located the Administrative Agent or Collateral Agent for the benefit of the Secured Parties in such jurisdiction all collateral to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES extent perfection has or will occur by (i) and the filing of a Uniform Commercial Code financing statement in the relevant jurisdiction, (ii) possession or control or (iii) the notation on a certificate of title. If the Administrative Agent shall determine that, as of any date, the Borrower shall have failed to comply with this Section 6.15, the Administrative Agent may (and at the direction of the defined term "Eligible Foreign Receivable" (eachRequired Lenders, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION")shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the UK Borrower shall, on or before June 29, 2002, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered shall execute and deliver to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Banksupplemental or additional Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent andand its counsel, without limiting the generality securing payment of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement Term Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and Documents (together with such other Borrower Subsidiaryinformation, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to may be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable requested by the Administrative Agent, in accordance with the terms each of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment which shall be in form and substance reasonably satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of that the Administrative Agent pursuant to a Pledge Agreement, 65.0% shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Capital Stock assets (other than Excluded Assets) of each first tier Subsidiary of any Domestic the Borrower organized under and the laws of AustraliaQRC Subsidiaries as required by Section 6.15(a).
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Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and deliver, shall cause each of its Domestic Subsidiaries to take such actions and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to deliver such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall require to ensure that the Administrative Agent or Collateral Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting Liens and security interests in substantially all of the right assets of the Borrower and each of its Domestic Subsidiaries, including all fixed assets, accounts receivable, inventory, Equity Interests, equipment, general intangibles, and deposit accounts; provided that any real property of the Borrower or any of its Subsidiaries is not required to establish appropriate Availability Reserves based on subject to a Lien securing the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and deliveredObligations.
(b) In addition connection with the actions required pursuant to and not in lieu of the rights and obligations of the parties under CLAUSE foregoing subsection (a) above, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shallshall and shall cause each Domestic Subsidiary to execute and deliver such stock certificates, on or before June 29blank stock powers, 2002evidence of corporate authorization, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion opinions of counsel, addressed current valuations, evidence of title and other documents, and shall use commercially reasonable efforts to obtain any third party consents, as shall be reasonably requested by the Administrative Agent, the Lenders and the Issuing Bank, in each case in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor JurisdictionAgent.
(c) In addition to and not The Liens required by this Section 6.14 shall be first priority perfected Liens in lieu favor of the rights and obligations Administrative Agent or Collateral Agent for the benefit of the parties under CLAUSES (a) and (b) aboveLenders, at any time and from time subject to time, (i) promptly following no other Liens except Permitted Liens of the type described in Section 7.01. If the Administrative Agent's written request and at Agent shall determine that, as of any date, the expense of the applicable PersonBorrower shall have failed to comply with this Section 6.14, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable (and at the direction of the Required Lenders, shall) notify the Borrower in order to perfect writing of such failure and, within 30 days from and protect any Lien granted or purported to be granted pursuant after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Loan Documents Administrative Agent supplemental or to enable the Administrative Agent, in accordance with the terms of the applicable additional Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative AgentAgent and its counsel, securing payment of the right to receive proceeds (for application to Revolver Notes and the other Obligations in accordance with this Agreement) and covering additional assets and properties of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or its Domestic Subsidiaries not then encumbered by any Loan Documents (together with such Subsidiary is a partyother information, (B) as may be prohibited requested by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, each of which shall be in form and substance reasonably satisfactory to the Borrowers shall pledge for the benefit of Administrative Agent) such that the Administrative Agent pursuant to a Pledge Agreement, 65.0% shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Capital Stock assets of each first tier Subsidiary of any the Borrower and its Domestic Borrower organized under the laws of AustraliaSubsidiaries as required by Section 6.14(a).
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Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and delivercause each Subsidiary (other than Inverness), from time to time, to become an Obligor with respect to, and cause the Borrower Subsidiaries to execute jointly and deliver, within the time periods set forth severally liable with respect to such items on the Closing Listall other Obligors for, all agreements, documents the Obligations under this Agreement and instruments designated as "post-closing items" on the Closing List. In Notes and the event that any such agreement, document or instrument is not delivered within such time periods, other Loan Documents by promptly executing and delivering to the Lenders a Guaranty substantially in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value form of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE (a) aboveEXHIBIT G hereto, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on or before June 29, 2002, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such saleappropriate insertions, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, orcausing such Subsidiary's, as the case may be, Italiancapital stock, law and assuming that the notice of the sale required by the Receivables Sale partnership, joint venture or membership interest to be pledged pursuant to a Pledge Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel substantially in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level form of risk of the Liens granted over the Receivables (under EnglishEXHIBIT N hereto, Dutch, or as applicable, Italian law under the English Deed of Chargewith appropriate insertions. In addition, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliverSubsidiaries, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the reasonable request of the Administrative Agent, assign to take such actions and to execute and deliver such documents and instruments as the Administrative Agent shall require to ensure that the Administrative Agent shall, at all times, have received currently effective duly executed Loan Documents encumbering all of the Borrower's and its Subsidiaries' material assets and properties, both tangible and intangible, both personal and real, together with current valuations, appraisals and engineering reports and satisfactory title evidence, including title opinions or title insurance in form and substance reasonably acceptable to the Administrative AgentAgent in its reasonable business judgment as to ownership of such assets and properties. If the Administrative Agent shall determine that, pursuant as of any date, the Borrower shall have failed to an assignment comply with the preceding sentences, the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, securing payment of the Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents (together with current valuations, engineering reports, appraisals, and title opinions or insurance applicable to the additional assets and properties collaterally assigned, each of which shall be in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of that the Administrative Agent pursuant to a Pledge Agreement, 65.0% shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Capital Stock assets and properties of each first tier Subsidiary of any Domestic the Borrower organized under the laws of Australiaand its Subsidiaries.
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as "“post-closing items" ” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Valuevalue for purposes of calculating the Domestic Borrowing Base or the Multicurrency Borrowing Base, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE clause (a) above, with respect to each in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located Foreign Account Debtors in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES clauses (i) and (ii) of the defined term "“Eligible Foreign Receivable" ” (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"“Material Foreign Account Debtor Jurisdiction”), the UK Borrower shallshall cause to be issued, within 45 days after the date on or before June 29, 2002, with respect to jurisdictions constituting which a jurisdiction becomes a Material Foreign Account Debtor Jurisdictions as of the Closing DateJurisdiction, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing BankBanks, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands BorrowerBorrowers, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the “Required Cross-Border Opinions have not been delivered Opinions”). In addition, within 90 days after the date on or before June 30, 2002, with respect to any which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands BorrowerBorrowers, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower Borrowers and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES clauses (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's ’s written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Contracts, Currency Agreement or Commodity Agreements to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If .
(d) In addition to and not in lieu of the Australian Reorganization rights and obligations of the parties under clauses (a), (b) and (c) above, promptly, but in any event within 90 days, following the Administrative Agent’s written request (or such later date as is not complete prior agreed to July 31in writing by the Administrative Agent), 2002and at the expense of the applicable Borrower or Subsidiary thereof, or with the consent of each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and substance reasonably satisfactory to the Administrative Agent, September 30any and all such further instruments and documents, 2002including, without limitation, all amendments, modifications, supplements, restatements or reaffirmations of any existing instruments or documents, in each case as are reasonably requested by the Borrowers shall pledge for the benefit Administrative Agent in order to create and/or maintain a valid and perfected security interest of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of in any Domestic Borrower organized under the laws of AustraliaForeign Collateral.
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Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as "“post-closing items" ” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Valuevalue for purposes of calculating the Domestic Borrowing Base or the Multicurrency Borrowing Base, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE clause (a) above, with respect to each in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located Foreign Account Debtors in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES clauses (i) and (ii) of the defined term "“Eligible Foreign Receivable" ” (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"“Material Foreign Account Debtor Jurisdiction”), the UK Borrower shallshall cause to be issued, within 45 days after the date on or before June 29, 2002, with respect to jurisdictions constituting which a jurisdiction becomes a Material Foreign Account Debtor Jurisdictions as of the Closing DateJurisdiction, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing BankBanks, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands BorrowerBorrowers, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the “Required Cross-Border Opinions have not been delivered Opinions”). In addition, within 90 days after the date on or before June 30, 2002, with respect to any which a jurisdiction becomes a Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands BorrowerBorrowers, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower Borrowers and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES clauses (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Contracts, Currency Agreement or Commodity Agreements to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION Section 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If .
(d) In addition to and not in lieu of the Australian Reorganization rights and obligations of the parties under clauses (a), (b) and (c) above, promptly, but in any event within 90 days, following the Administrative Agent's written request (or such later date as is not complete prior agreed to July 31in writing by the Administrative Agent), 2002and at the expense of the applicable Borrower or Subsidiary thereof, or with the consent of each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, in form and substance reasonably satisfactory to the Administrative Agent, September 30any and all such further instruments and documents, 2002including, without limitation, all amendments, modifications, supplements, restatements or reaffirmations of any existing instruments or documents, in each case as are reasonably requested by the Borrowers shall pledge for the benefit Administrative Agent in order to create and/or maintain a valid and perfected security interest of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of in any Domestic Borrower organized under the laws of AustraliaForeign Collateral.
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Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and deliver, shall cause each of its Subsidiaries to take such actions and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to deliver such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall require to ensure that the Administrative Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting Liens and security interests in substantially all of the right to establish appropriate Availability Reserves based on assets of the value Borrower and each of such Collateralits Subsidiaries, until such agreementsincluding all fixed assets, documents real property, Accounts Receivable, Inventory, Equity Interests, equipment, general intangibles, and instruments with respect thereto are executed and delivereddeposit accounts.
(b) In addition connection with the actions required pursuant to and not in lieu of the rights and obligations of the parties under CLAUSE foregoing subsection (a) above, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shallshall and shall cause each Subsidiary to execute and deliver such stock certificates, on or before June 29blank stock powers, 2002evidence of corporate authorization, with respect opinions of counsel, current valuations, evidence of title, title insurance and other documents, and shall use commercially reasonable efforts to jurisdictions constituting Material Foreign Account Debtor Jurisdictions obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(c) The Liens required by this SECTION 6.14 shall be first priority perfected Liens in favor of the Administrative Agent for the benefit of the Lenders, subject to no other Liens except Permitted Liens of the type described in SECTION 7.
01. If the Administrative Agent shall determine that, as of any date, the Closing DateBorrower shall have failed to comply with this SECTION 6.14, cause to be delivered the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent an opinion of supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, addressed to securing payment of the Notes and the other Obligations and covering additional assets and properties of the Borrower or its Subsidiaries not then encumbered by any Loan Documents (together with such other information, as may be requested by the Administrative Agent, the Lenders and the Issuing Bank, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (iAgent) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws assets of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary its Subsidiaries as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property required by SECTION 6.14(A).
(other than Equipment, fixtures and Real Propertyd) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction Within sixty (60) days after the Closing Date, the UK Borrower Loan Parties and Administrative Agent shall (1) cause to be delivered have entered into the Required Cross-Border Opinions for Lockbox and Collection Account Agreement with the financial institution holding the Loan Parties' operating and other bank accounts or otherwise have taken such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order requests to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable give the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to Lenders, a Pledge Agreement, 65.0% first priority perfected Lien on all deposit accounts of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of AustraliaLoan Parties.
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Further Assurances; Additional Collateral. (a) Each The Borrower ----------------------------------------- shall execute and delivercause each Subsidiary, from time to time, to become an Obligor with respect to, and cause the Borrower Subsidiaries to execute jointly and deliver, within the time periods set forth severally liable with respect to such items on the Closing Listall other Obligors for, all agreements, documents the Obligations under this Agreement and instruments designated as "post-closing items" on the Closing List. In Notes and the event that any such agreement, document or instrument is not delivered within such time periods, other Loan Documents by promptly executing and delivering to the Lenders a Guaranty substantially in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value form of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE (a) aboveExhibit G hereto, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shall, on or before June 29, 2002, with respect to jurisdictions constituting Material Foreign Account Debtor Jurisdictions as of the Closing Date, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such saleappropriate insertions, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, orcausing such --------- Subsidiary's, as the case may be, Italiancapital stock, law partnership, joint venture or membership interest to be pledged pursuant to a Pledge Agreement substantially in the form of Exhibit N hereto, with appropriate insertions. In addition, the --------- Borrower shall and assuming shall cause its Subsidiaries, upon the reasonable request of the Agent, to take such actions and to execute and deliver such documents and instruments as the Agent shall require to ensure that the notice Agent shall, at all times, have received currently effective duly executed Loan Documents encumbering all of the sale required Borrower's and its Subsidiaries' material assets and properties, both tangible and intangible, both personal and real, together with current valuations, appraisals and engineering reports and satisfactory title evidence, including title opinions or title insurance in form and substance reasonably acceptable to the Agent in its reasonable business judgment as to ownership of such assets and properties. If the Agent shall determine that, as of any date, the Borrower shall have failed to comply with the preceding sentences, the Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, Borrower shall execute and deliver to the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Agent supplemental or additional Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative AgentAgent and its counsel, securing payment of the right to receive proceeds Notes and the other Obligations and covering additional assets and properties not then encumbered by any Loan Documents (for application together with current valuations, engineering reports, appraisals, and title opinions or insurance applicable to the Obligations additional assets and properties collaterally assigned, each of which shall be in accordance with this Agreementform and substance satisfactory to the Agent) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding such that the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 Agent shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit assets and properties of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of Australiaand its Subsidiaries.
Appears in 1 contract
Further Assurances; Additional Collateral. (a) Each The Borrower shall execute and deliver, shall cause each of its Subsidiaries to take such actions and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to deliver such items on the Closing List, all agreements, documents and instruments designated as "post-closing items" on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall require to ensure that the Administrative Agent on behalf of the Lenders shall, at all times, have received currently effective duly executed Loan Documents granting Liens and security interests in substantially all of the right assets of the Borrower and each of its Subsidiaries located in the United States, including all fixed assets, real property, accounts receivable, inventory, Equity Interests, equipment, general intangibles, and deposit accounts. Without limiting the forgoing, on or before February 17, 2006 the Borrower and such of its Subsidiaries having a deposit or similar account with W▇▇▇▇ Fargo Bank, N.A. will execute and deliver to establish appropriate Availability Reserves based on the value of such CollateralAdministrative Agent, until such agreementsand cause W▇▇▇▇ Fargo Bank, documents N.A. to execute and instruments with respect thereto are executed and delivereddeliver to the Administrative Agent the Deposit Account Pledge Agreement.
(b) In addition connection with the actions required pursuant to and not in lieu of the rights and obligations of the parties under CLAUSE foregoing subsection (a) above, with respect to each jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES (i) and (ii) of the defined term "Eligible Foreign Receivable" (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"), the UK Borrower shallshall and shall cause each Subsidiary to execute and deliver such stock certificates, on or before June 29blank stock powers, 2002evidence of corporate authorization, with respect opinions of counsel, current valuations, evidence of title, title insurance and other documents, and shall use commercially reasonable efforts to jurisdictions constituting Material Foreign Account Debtor Jurisdictions obtain landlord and mortgagee waivers and third party consents, as shall be requested by the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(c) The Liens required by this Section 6.14 shall be first priority perfected Liens in favor of the Administrative Agent for the benefit of the Lenders, subject to no other Liens except Permitted Liens of the type described in Section 7.01. If the Administrative Agent shall determine that, as of any date, the Closing DateBorrower shall have failed to comply with this Section 6.14, cause to be delivered the Administrative Agent may (and at the direction of the Required Lenders, shall) notify the Borrower in writing of such failure and, within 30 days from and after receipt of such written notice by the Borrower, the Borrower shall execute and deliver to the Administrative Agent an opinion of supplemental or additional Loan Documents, in form and substance satisfactory to the Administrative Agent and its counsel, addressed to securing payment of the Revolver Notes and the other Obligations and covering additional assets and properties of the Borrower or its Subsidiaries not then encumbered by any Loan Documents (together with such other information, as may be requested by the Administrative Agent, the Lenders and the Issuing Bank, each of which shall be in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (iAgent) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk shall have received currently effective duly executed and perfected Collateral Documents encumbering substantially all of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws assets of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of AustraliaSection 6.14(a).
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Further Assurances; Additional Collateral. (a) Each Borrower shall execute and deliver, and cause the Borrower Subsidiaries to execute and deliver, within the time periods set forth with respect to such items on the Closing List, all agreements, documents and instruments designated as "“post-closing items" ” on the Closing List. In the event that any such agreement, document or instrument is not delivered within such time periods, in addition to any other remedies provided hereunder or under the Loan Documents, the Collateral Value of Collateral subject to such agreement, document or instrument, if any, shall be deemed to be zero or, if such Collateral does not otherwise have Collateral Value, the Administrative Agent shall have the right to establish appropriate Availability Reserves based on the value of such Collateral, until such agreements, documents and instruments with respect thereto are executed and delivered.
(b) In addition to and not in lieu of the rights and obligations of the parties under CLAUSE clause (a) above, with respect to each in the event that any jurisdiction where account debtors of the UK Borrower are located (each, a “Foreign Account Debtor”) becomes a jurisdiction where the aggregate amount of Receivables owing by account debtors (each, a "FOREIGN ACCOUNT DEBTOR") located Foreign Account Debtors in such jurisdiction to the UK Borrower is in excess of $1,000,000 and such jurisdiction is a jurisdiction with respect to which Receivables would be given eligibility pursuant to CLAUSES clauses (i) and (ii) of the defined term "“Eligible Foreign Receivable" ” (each, a "MATERIAL FOREIGN ACCOUNT DEBTOR JURISDICTION"“Material Foreign Account Debtor Jurisdiction”), the UK Borrower shallshall cause to be issued, within 45 days after the date on or before June 29, 2002, with respect to jurisdictions constituting which a jurisdiction becomes a Material Foreign Account Debtor Jurisdictions as of the Closing DateJurisdiction, cause to be delivered to the Administrative Agent an opinion of counsel, addressed to the Administrative Agent, the Lenders and the Issuing Bank, in form and substance reasonably satisfactory to the Administrative Agent and, without limiting the generality of the foregoing, concluding that, under the laws of the Material Foreign Account Debtor Jurisdiction, (i) the courts of the Material Foreign Account Debtor Jurisdiction would recognize the stated choice of law governing the Receivables (being Netherlands law, English law, and, if Receivables governed by Italian law are then included, Italian law) owing from the Foreign Account Debtors in such Material Foreign Account Debtor Jurisdiction; (ii) a judgment under or in respect of such Receivables obtained in the courts of the jurisdiction whose law governs the Receivables would be enforced in the Material Foreign Account Debtor Jurisdiction; (iii) if such Receivables have been sold to the UK Borrower by the Netherlands Borrower, and, if applicable, by NACCO Materials Handling S.R.L. pursuant to a Receivables Sale Agreement, such sale, and the stated choice of Dutch law under a Receivables Sale Agreement, or, in the case of sales by NACCO Materials Handling S.R.L., Italian law, would be recognized under the laws of the Material Foreign Account Debtor Jurisdiction (assuming that the same constituted a valid sale under Dutch, or, as the case may be, Italian, law and assuming that the notice of the sale required by the Receivables Sale Agreement had been given to the Foreign Account Debtor); and (iv) if the Administrative Agent so requires legal opinions of counsel in the relevant Material Foreign Account Debtor Jurisdiction as enables the Administrative Agent to assess the level of risk of the Liens granted over the Receivables (under English, Dutch, or as applicable, Italian law under the English Deed of Charge, the Dutch law governed Foreign Security Agreement granted by the UK Borrower or, if applicable, any Italian law governed Foreign Security Agreement granted by the UK Borrower): (A) not being recognized or upheld under the laws of the relevant Material Foreign Account Debtor Jurisdiction; and (B) in consequence thereof being successfully challenged by a trustee in bankruptcy, liquidator or similar officer of the UK Borrower under the laws of the relevant Foreign Debtor Jurisdiction, the Administrative Agent has concluded that the level or risk is acceptable to it (collectively, the "REQUIRED CROSS-BORDER OPINIONS"); provided, however, that, in the event that the Required Cross-Border Opinions have not been delivered on or before June 30, 2002, with respect to any Material Foreign Account Debtor Jurisdiction, on or before August 31, 2002, (x) the UK Borrower shall form a Receivables Subsidiary, and the Multicurrency Borrowers (and any other Borrower Subsidiary party to a Receivables Sale Agreement) shall thereafter transfer all Receivables owing from account debtors located in such Material Foreign Account Debtor Jurisdiction to the Receivables Subsidiary and (y) the Receivables Subsidiary shall become a Multicurrency Borrower, and the Receivables Subsidiary, the UK Borrower, the Netherlands Borrower, the other Credit Parties and such other Borrower Subsidiary shall enter into amendments to this Agreement and the other Loan Documents, or other agreements, documents and instruments, in each case as the Administrative Agent may reasonably request, to permit the transactions among the Receivables Subsidiary, the UK Borrower the Netherlands Borrower and such other Borrower Subsidiary, to reflect the Receivables Subsidiary as a Multicurrency Borrower hereunder and to grant to the Administrative Agent a Lien on all Property (other than Equipment, fixtures and Real Property) of the Receivables Subsidiary. In the event that any jurisdiction where account debtors of the UK Borrower are located becomes a Material Foreign Account Debtor Jurisdiction after the Closing Date, the UK Borrower shall (1) cause to be delivered the Required Cross-Border Opinions for such jurisdiction within 45 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction or (2) to the extent not already completed, take all actions required under CLAUSES (X) and (Y) of the proviso to the preceding sentence within 90 days after the date such jurisdiction becomes a Material Foreign Account Debtor Jurisdiction.
(c) In addition to and not in lieu of the rights and obligations of the parties under CLAUSES (a) and (b) above, at any time and from time to time, (i) promptly following the Administrative Agent's written request and at the expense of the applicable Person, each Borrower agrees to duly execute and deliver, and to cause its Subsidiaries to duly execute and deliver, any and all such further instruments and documents and take such further action as the Administrative Agent may reasonably deem desirable in order to perfect and protect any Lien granted or purported to be granted pursuant to the Loan Documents or to enable the Administrative Agent, in accordance with the terms of the applicable Loan Documents, to exercise and enforce its rights and remedies under the Loan Documents with respect to such Collateral and (ii) promptly upon the request of the Administrative Agent, assign to the Administrative Agent, pursuant to an assignment in form and substance satisfactory to the Administrative Agent, the right to receive proceeds (for application to the Obligations in accordance with this Agreement) of any Interest Rate Contracts or Currency Agreement to which any Credit Party is a party. Notwithstanding the foregoing, the granting of such further assurances or security interest under this SECTION 8.10 shall not be required if it would (A) be prohibited by other Contractual Obligations to which such Borrower or such Subsidiary is a party, (B) be prohibited by applicable law, or (C) result in material adverse tax consequences to any Borrower. If the Australian Reorganization is not complete prior to July 31, 2002, or with the consent of the Administrative Agent, September 30, 2002, the Borrowers shall pledge for the benefit of the Administrative Agent pursuant to a Pledge Agreement, 65.0% of the Capital Stock of each first tier Subsidiary of any Domestic Borrower organized under the laws of Australia.;
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Sources: Credit Agreement (NMHG Holding Co)