Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles): (i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary; (ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary; (iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests), pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests. (iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and (v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder. (2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall: (a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations; (b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent; (c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage; (d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent; (e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust; (f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and (g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties. (3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s: (a) Corporate, company or organization name; (b) organizational structure (including jurisdiction of incorporation); (c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or (d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party. (4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents. (5) Notwithstanding anything to the contrary, (a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles; (b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent; (c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and (d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Venator Materials PLC), Term Loan Credit Agreement (Venator Materials PLC)
Further Assurances; Additional Security. Subject to the Agreed Security Principles and any applicable limitation in this Agreement and any Security Document:
(a) upon (1) If the formation or acquisition of any new Wholly-Owned Subsidiary by any Loan Party that is organized or incorporated in a Specified Jurisdiction, (a2) a Restricted the designation in accordance with Section 5.12 of any existing Wholly-Owned Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated any Loan Party as a Restricted “restricted” Subsidiary that is not an organized or incorporated in a Specified Jurisdiction, or (3) any Person becoming a Wholly-Owned Subsidiary of a Loan Party that is organized or incorporated in a Specified Jurisdiction, in each case other than any Excluded Subsidiary, within five Business Days (x) sixty (60) days after the date such Restricted event for any such Subsidiary that is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted U.S. Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 or (y) ninety (90) days after the date such Restricted event for any such Subsidiary that is formed or acquired (or a Non-U.S. Subsidiary or, in each case, such longer period as the Administrative Agent may agree in its sole reasonable discretion), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, execute and deliver the Guarantee Agreement (or a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiarythereto);
(ii) with respect execute and deliver (x) if a Domestic U.S. Subsidiary, deliver the Collateral Agreement (or a joinder to or supplement thereto) and the US Collateral Agreement substantially in the form specified thereinother Security Documents required thereby, and with respect to any Foreign or (y) if a Non-U.S. Subsidiary, the appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documentsthereto) the same as or substantially similar to other Loan Parties organized in the same jurisdiction or if at such time there are no other Loan Parties in such jurisdiction, Security Documents consistent with the Agreed Security Principles, in each case, duly executed on behalf of such Restricted Subsidiaryreasonably acceptable to the Administrative Agent;
(iii) execute and deliver counterpart signature page acknowledgments (or joinders or supplements, as applicable) to the extent any First Lien Intercreditor Agreement, Junior Lien Intercreditor Agreement or other applicable intercreditor or subordination agreement required by hereunder;
(iv) cause such Subsidiary (and any parent of such Subsidiary that is a Loan Party) subject to the exceptions set forth in the Agreed Security Principles and any applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each such Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity InterestsInterests (to the extent certificated), together with accompanied by undated stock powers, stock transfer forms powers or other appropriate instruments of transfer with respect thereto executed in blank (or any other documents customary under local law), and instruments evidencing Indebtedness held by such Subsidiary and required to be pledged pursuant to the Agreed Security Principles and the applicable Security Documents, endorsed in blank, to the Collateral Agent (or a designated bailee thereof)Agent; provided, that notwithstanding the foregoing and notwithstanding anything to the contrary in this Agreement or in any other Loan Document to the contraryDocument, no actions will be required under the laws of any jurisdiction other than any jurisdiction in which a Loan Party is organized (and in the United States or case of any Specified Foreign Jurisdiction US Loan Party, under New York law) in order to create or perfect any security interest in any Equity Interests.;
(ivv) upon the reasonable request of the Administrative Agent, take and cause such Subsidiary and each direct or indirect parent of such applicable Subsidiary that is a Loan Party to take such customary actions (including the filing of Uniform Commercial Code financing statements) as may be necessary in the reasonable opinion of the Administrative Agent to vest in the Collateral Agent (or in any representative of the Collateral Agent designated by it) valid first-priority perfected Liens (subject to Permitted Liens) required by the Collateral Agreement or other applicable Security Document; and
(vi) upon reasonable request of the Administrative Agent and if consistent with market practice to be provided by Loan Party counsel in the relevant jurisdiction, deliver (or cause to be delivered) to the extent required by and subject Administrative Agent a signed copy of a customary opinion, addressed to the exceptions Administrative Agent and the other Lenders, of counsel for the Loan Parties as to such matters set forth in this Section 5.10 or 5.10(a) as the Security Documents, deliver to the Collateral Administrative Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents may reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunderrequest.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i(i) hereof and owns fee simple title in Real Property located in the United Stateswithin sixty (60) days thereof, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole reasonable discretion, notify the Administrative Agent of the acquisition (which for this clause (b) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) by any Loan Party of any Owned Real Property and (ii) within one hundred twenty (120) days after such acquisition or entry of a joinder (as applicable)acquisition, such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole reasonable discretion, grant (or cause such Loan Party to grant) after such notice is given to the Collateral Agent security interests and mortgages in such Owned Real Property of such Loan Parties as are not covered by any then-existing Mortgages (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.10(f) or the Security Documents), to the extent acquired after the Closing Date and having a value or purchase price at the time of acquisition equal to or in excess of $20,000,000, pursuant to a Mortgage constituting valid and enforceable Liens subject to no later than 90 days other Liens except Permitted Liens at the time of perfection thereof, record or file, and cause each such Loan Party to record or file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (f) below. Unless otherwise waived by the Collateral Agent, with respect to such Mortgage, Parent shall, or such longer period as shall cause the Administrative Agent may agree applicable Loan Party to, deliver to the Collateral Agent, (A) (i) in its sole discretion) after such acquisition or entry the case of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Mortgaged Property (as applicable) located in the United States or any territory thereof, or any foreign jurisdiction with respect to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage which title insurance is available and customarily obtained in connection with transactions similar to the Transactions, a policy or policies in form and substance or marked up unconditional binder of title insurance or the foreign equivalent thereof, as applicable, paid for by a Loan Party, issued by one or more title insurance companies reasonably satisfactory acceptable to the Collateral AgentAgent insuring the Liens of each Mortgage as a valid first lien on the Mortgaged Property described therein, free of other Liens except Permitted Liens, together, with such customary endorsements (to the extent available in the subject jurisdiction and including zoning endorsements where reasonably appropriate and available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably requestrequest or (ii) in any foreign jurisdiction to the extent title insurance is not so available and customarily obtained, all of but a title opinion is customarily obtained (and can be so obtained at a commercially reasonable cost), a title opinion covering the foregoing matters customarily covered in title opinions in the applicable jurisdiction, in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery acceptable to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (AB) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Certificate Hazard Determination with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, United States (x) together with a notice about special flood hazard area status and flood disaster assistance, ) duly executed by the Borrowerapplicable Loan Party relating thereto, (yC) evidence if the Administrative Agent or the Collateral Agent reasonably determines (in consultation with Parent) that it is a requirement of flood insurance applicable law to have appraisals prepared in respect of the Mortgaged Property of any Loan Party that is located in the United States, Parent shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA, (D) an ALTA survey of each Mortgaged Property, or an existing survey with a financially sounds no-change affidavit, for which all necessary fees (where applicable) have been paid with respect to each such Mortgaged Property, which is, in each case, sufficient for such title insurance company to remove all standard survey exceptions from the title insurance policy relating to such Mortgaged Property and reputable insurer, naming issue the customary survey related endorsements or otherwise reasonably acceptable to the Administrative AgentAgent and (E) with respect to the Mortgage encumbering each such Mortgaged Property, opinions of counsel regarding the enforceability, due authorization, execution and delivery of the Mortgages and such other matters customarily covered in real estate counsel opinions as mortgageethe Administrative Agent may reasonably request, in an amount and otherwise in form and substance reasonably satisfactory acceptable to the Administrative Agent. With respect to each Mortgage for a Mortgaged Property located in the Commonwealth of Puerto Rico, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to Loan Party owning such Mortgaged Property shall, if so requested by the Administrative Agent;
(e) provide evidence of insurance naming , execute and deliver in pledge to the Collateral Agent as loss payeea demand bearer mortgage note in a principal amount equal to 110% of the fair market value of such Mortgaged Property (based on purchase price, additional insured and mortgagee with such responsible and reputable insurance companies appraisal or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are other valuation method reasonably satisfactory to the Collateral Agent), including which mortgage note will be secured by such Mortgage and shall be pledged to the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered Collateral Agent pursuant to clause (b)a supplement to the Collateral Agreement, obtain customary mortgage, deed of trust or deed and which mortgage note and supplement to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as Collateral Agreement shall be necessary or in form and substance satisfactory to the Collateral Agent and accompanied by such other documentation as may be reasonably requested by the Collateral Agent in connection with the recording and filing thereof. Notwithstanding the foregoing, the Collateral Agent shall not enter into any Mortgage in respect of any Real Property acquired by any Loan Party after the Closing Date until (I) the date that occurs thirty (30) days after the Administrative Agent has made available to perfect the Lenders and L/C Issuers (which may be made available electronically on the Platform) the following documents in respect of such LiensReal Property: (A) a completed flood hazard determination from a third-party vendor; (B) if such Real Property is located in a “special flood hazard area”, in each case, at the expense (1) a notification to Parent of that fact and (if applicable) notification to Parent that flood insurance coverage is not available and (2) evidence of the Loan Partiesreceipt by Parent of such notice; and (C) if such notice is required to be provided to Parent and flood insurance is available in the community in which such real property is located, subject to paragraph evidence of required flood insurance and (5II) of this Section 5.10. Notwithstanding anything herein the Administrative Agent and each Joint Lead Arranger confirms that its flood insurance due diligence and flood insurance compliance has been completed; provided, that if any Joint Lead Arranger has not confirmed in writing that its flood insurance due diligence and flood insurance compliance has been completed within sixty (60) days after written notice to the contraryJoint Lead Arrangers of the acquisition of such Real Property, such Joint Lead Arranger shall be deemed to have consented to such Mortgage and to have confirmed that its flood insurance due diligence and flood insurance compliance is complete.
(c) Within sixty (60) days (or such later date as the Administrative Agent may waive approve) after the requirements delivery of this the certificate pursuant to Section 5.10(25.04(e) demonstrating that the Guarantor Coverage Test has not been satisfied as of the applicable Test Period (or, if later, ninety (90) days (or such later date as the Administrative Agent determines (may approve) after the formation or acquisition of the relevant Subsidiaries), Parent shall cause one or more Subsidiaries to become Subsidiary Loan Parties to take the actions specified in Section 5.10(a) in order to grant perfected liens on its sole discretion) assets consistent with the liens granted by the other Loan Parties such that the burden, cost, time or consequences Guarantor Coverage Test would be satisfied as of obtaining the last day of such items is excessive in relation to the benefits to be obtained therefrom by the Secured PartiesTest Period.
(3d) Deliver such additional guarantee or security agreements and/or take such other action in order to create and/or perfect a security interest in additional property of the Loan Parties or additional Loan Parties in any jurisdiction, as reasonably requested by the Administrative Agent or the Collateral Agent in accordance with (and subject to) the Agreed Security Principles, this Agreement and any applicable limitation in any Security Document, within 60 days of such request (or such later date as is agreed to by the Administrative Agent or the Collateral Agent, consistent with the Agreed Security Principles).
(e) Furnish to the Collateral Agent five Business Days prior promptly (and in any event within 30 days after such change) written notice of any change (i) in any Loan Party’s:
(a) Corporate, company ’s corporate or organization name;
, (bii) in any Loan Party’s identity or organizational structure structure, (including iii) in any Loan Party’s jurisdiction of incorporation);
organization or (civ) with respect to any Loan Party organized under the laws of Puerto Rico or possessing collateral in Puerto Rico, any change in its location (determined within the meaning of the Uniform Commercial Code as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest effect in the applicable jurisdictionCommonwealth of Puerto Rico; provided, Federal Taxpayer Identification Number. Holdings and the Borrowers will not that no Loan Party shall effect or permit any such change unless all filings have been made, or will be have been made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, interest in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in Parties with the Security Documents and same priority as prior to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documentschange.
(5f) Notwithstanding anything Anything to the contrary,
(a) contrary notwithstanding, the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests any Real Property held by Parent or any exclusions and carve-outs from the perfection requirements set forth of its Subsidiaries as a lessee under a lease or any Real Property owned in the US Collateral Agreement and fee that is not Owned Real Property or (ii) any assets Excluded Property. Notwithstanding anything to the contrary in this Agreement, the Collateral Agreement, or any other exclusions and carve-outs from Loan Document, (i) no control agreements, lockbox arrangements or similar will be required with respect to any accounts, (ii) no landlord waivers, collateral access agreements or similar will be required, (iii) the Administrative Agent may grant extensions of time and/or waive the requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with Parent, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, and perfection (iv) Liens required to be granted from time to time pursuant to, or any other requirements of, the Loan Documents shall be subject to exceptions and limitations set forth in the Security Documents to and the extent provided for in the Guaranty and Agreed Security Principles;.
(bg) neither Holdings nor Parent shall or shall cause the other applicable Loan Parties will be required Party to grant a security interest in any asset take such actions set forth on Schedule 5.10(g) within the timeframes set forth for the taking of such actions on Schedule 5.10(g) (or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby within such longer timeframes as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into permit in its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the Loan Documents with respect to the taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be completed in accordance with this Section 5.10(g)).
(h) If any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not asset located in a Flood Zone, ten the Dominican Republic (10) Business Days or (b) if such Mortgaged other than Real Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property which is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.covered
Appears in 2 contracts
Sources: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, within 60 days 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United StatesProperty, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 60 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall ):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:);
(ab) cause any such acquired or owned Owned Material Real Property (as applicable) located that has a fair market value (as determined in good faith by a Responsible Officer of the United States Borrower) of $7.5 million or more to be subjected to a Mortgage securing the ObligationsObligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(bc) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than 125% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, and all recording, recording and stamp taxes (including mortgage recording and intangible taxes taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent. (the “Mortgage Policies”);
(cd) obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Administrative Agent without any standard providing all reasonably required survey exceptions coverage and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageendorsements;
(de) ensure that the The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program)Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event (C) if any such property Flood Certificate states that a Mortgaged Property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (y2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence all applicable regulations of the payment Board of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative AgentGovernors;
(ef) provide evidence of insurance (including all insurance required to comply with applicable flood insurance lawsFlood Insurance Laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program)risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(fg) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(gh) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name;
(b) organizational structure (including jurisdiction of incorporationby division);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number;
(e) except, in the case of each of the foregoing clauses (a) through (c), in connection with the LLC Conversion. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesAgreement;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent;; and
(c) the Administrative Agent shall not enter into any Mortgage in respect of any Real Property acquired by any Loan Party after the First Amendment Effective Date until (1) the date that occurs 45 days after the Administrative Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Real Property: (i) a completed flood hazard determination from a third party vendor, (ii) if such Real Property is located in a “special flood hazard area,” (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance is not available and (B) evidence of receipt by the applicable Loan Party of such notice, and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Real Property is located, evidence of flood insurance, and (2) the Administrative Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably conditioned, withheld or delayed); and
(d) (c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, foreign law mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any foreign intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and.
(d6) For the Administrative Agent avoidance of doubt, and without limitation, this Section 5.10 shall not enter into apply to any Mortgage in respect division of any real property acquired by any a Loan Party after and to any division of a Person required to become a Loan Party pursuant to the Closing Date until terms of the date that is (a) if such Mortgaged Property relates Loan Documents and to any allocation of assets to a property not located in series of a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurancelimited liability company.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, within 60 days 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United StatesProperty, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 60 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall ):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:);
(ab) cause any such acquired or owned Owned Material Real Property (as applicable) located that has a fair market value (as determined in good faith by a Responsible Officer of the United States Borrower) of $7.5 million or more to be subjected to a Mortgage securing the ObligationsObligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(bc) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than 125% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, and all recording, recording and stamp taxes (including mortgage recording and intangible taxes taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent. (the “Mortgage Policies”);
(cd) obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Administrative Agent without any standard providing all reasonably required survey exceptions coverage and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageendorsements;
(de) ensure that the The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program)Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event (C) if any such property Flood Certificate states that a Mortgaged Property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (y2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence all applicable regulations of the payment Board of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative AgentGovernors;
(ef) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program)risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(fg) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(gh) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name;
(b) organizational structure (including jurisdiction of incorporation)structure;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number;
(e) except, in the case of each of the foregoing clauses (a) through (c), in connection with the LLC Conversion. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesAgreement;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent;; and
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, foreign law mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any foreign intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Further Assurances; Additional Security. (1) If (a) a Restricted The Borrower shall cause each of the Loan Parties to satisfy the Collateral and Guarantee Requirement with respect to any Material Real Property of such Loan Party that is acquired after the Closing Date, no later than the later of (i) 180 days after the acquisition of such Material Real Property or (ii) the date that financial statements are next required to be delivered pursuant to Section 5.04(a) or (b) following the fiscal quarter in which such acquisition occurs (or such later date as the Collateral Agent may agree in its reasonable discretion).
(b) If any additional direct or indirect Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party pursuant to the definition thereof, the Borrower shall cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interests in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, in each case by the date that financial statements are next required to be delivered pursuant to Section 5.04(a) or (b) an Unrestricted Subsidiary is redesignated following the fiscal quarter in which such formation or acquisition occurs (or, in any case, such later date as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole reasonable discretion), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):.
(ic) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests), pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, The Borrower shall furnish to the Collateral Agent written notice, no later than 90 days thereafter (or a designated bailee thereofsuch later date as the Collateral Agent may agree in its reasonable discretion), of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational or corporate form, (C) in any Loan Party’s organizational identification number, if applicable or (D) in any Loan Party’s jurisdiction of organization or incorporation; provided, provided that notwithstanding no notice shall be required to the foregoing or in extent such change will not adversely affect the perfection of Liens granted pursuant to the Security Documents.
(d) Notwithstanding any provision of any Loan Document to the contrary, no actions will the Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be required under satisfied with respect to any of the laws of following (collectively, the “Excluded Property”): (i) any jurisdiction Real Property other than the United States or any Specified Foreign Jurisdiction Material Real Property, (ii) motor vehicles, airplanes and other assets subject to certificates of title, letter of credit rights (in order to create or perfect any security interest in any Equity Interests.
(iv) each case, other than to the extent required a Lien on such assets or such rights can be perfected by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or filing a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended statement that is otherwise required to be created filed for the benefit of the Secured Parties under the Security Documents and perfect such Liens to the extent required by terms of the Security Documents; and
) and commercial tort claims,(iii) pledges and security interests (v1) except as otherwise contemplated prohibited or restricted by this Section 5.10 applicable law, rule, regulation or any Security Document, obtain all consents and approvals required to be obtained by it in connection with contractual obligation (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c)), (2) that would result in a breach, termination (or a right of termination) or default under any contract, instrument, lease, license, permit or other document (including pursuant to any “change of control” or similar provision) or that would permit any person (other than any Loan Party) to amend any rights, subject benefits or obligations of the relevant Loan Party in a manner adverse to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code) or (3) which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received, it being understood that there shall notify be no obligation on the Collateral Agent thereof part of the Borrower or any Subsidiary to seek such acquired consent, approval, license or owned Real Property located authorization), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse Tax consequences (including to the direct or indirect equity holders in the United States Borrower) as determined in good faith by the Borrower,(v) any lease, license or other agreement, or any property subject thereto, to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than any Loan Party) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Borrower determines in good faith that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the benefits to the Secured Parties (as applicabledetermined by the Borrower in good faith) afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given authorizations, to the Collateral Agent and (ii) no later than 90 days (extent security interests in such licenses, franchises, charters or such longer period as authorizations are prohibited or restricted thereby after giving effect to the Administrative Agent may agree in its sole discretion) after such acquisition or entry applicable anti-assignment provisions of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each Article 9 of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered therebyUniform Commercial Code, each of which title policy (viii) any “Title Policy”) intent-to-use” applications for trademark or service mark
(1) shall include all endorsements reasonably requested by the Collateral Agent and available Securitization Assets sold, contributed or otherwise transferred to any Securitization Entity or otherwise pledged, factored, transferred or sold in the related jurisdiction connection with any Permitted Securitization Financing and (2) shall provide any other assets subject to Liens securing Permitted Securitization Financings, (x) any cash and cash equivalents, deposit accounts, commodity accounts and securities accounts (including securities entitlements and related assets) (but, in each case, excluding cash or cash equivalents representing the identifiable proceeds of Collateral or a security interest in which is automatically perfected or perfected solely by filing of a Uniform Commercial Code financing statement in a form otherwise required to be filed pursuant to the Security Documents), (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Finance Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for affirmative insurance and such reinsurance debt or Finance Lease Obligation prohibits, or requires the consent of any person (other than any Loan Party) as a condition to the Collateral Agent may reasonably requestcreation of, all any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the foregoing in form Uniform Commercial Code or other applicable law), (xiv) farm products, as extracted collateral, manufactured homes, health care insurance receivables, timber to be cut or aircraft engines, satellites, ships or railroad rolling stock and substance reasonably satisfactory to the Collateral Agent; (Bxv) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably property not required by the Title Company in connection Collateral and Guarantee Requirement to be subject to any Lien to secure the Secured Obligations; provided that the Borrower may from time to time elect to cause any assets that would otherwise constitute Excluded Property hereunder to become Collateral under the Loan Documents (but shall have no obligation to do so) with the issuance consent of the applicable Title Policy and Administrative Agent (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits not to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages includingunreasonably withheld, without limitationconditioned or delayed); provided, public road accessfurther, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each such security documents as are customary for the applicable jurisdiction and reasonably requested by the Collateral Agent. Notwithstanding anything to the contrary in any Loan Party: Document, (A) a completed Flood Certificate the Collateral Agent may grant extensions of time or waivers (which may be retroactive) of any requirement for the creation or perfection of security interests, the granting of guarantees, the obtaining of insurance (including title insurance) or surveys with respect to each Mortgaged Property with particular assets or any “building”other matter set forth or described in this Section 5.10, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agentand Guarantee Requirement or any Security Document, (2) be completed by a company which has guaranteed without the accuracy consent of the information contained thereinany other Secured Party, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event no perfection by control, control agreement or control, lockbox or similar arrangement shall be required with respect to any such property is located in a Flood Zonedeposit accounts, (x) a notice about special flood hazard area status securities accounts or commodities accounts or any other assets other than by delivery of certificated securities and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds similar instruments constituting Collateral and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance expressly required by the terms of the Security Documents, (C) no source code escrow arrangements or registration of any mortgage Intellectual Property shall be required, (D) no landlord, mortgagee or deed bailee waivers (including any estoppel, collateral access letters or similar types of trust;
waiver) shall be required, (fE) for each Mortgage delivered with respect to any Loan Party, no security documents or instruments governed by, or perfection or other actions under, the law of a jurisdiction other than the United States of America pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as laws thereof shall be necessary required; provided that this clause shall not apply to pledge or reasonably requested security agreements as may be mutually agreed by the Collateral Agent and the Borrower with respect to perfect any Designated Guarantor or Designated Foreign Borrower, (F) no periodic filing shall be required to be made (other than as expressly required pursuant to a Security Document) and no notice shall be required to be sent to insurers, third-party account debtors or other contractual third parties prior to an Event of Default that is continuing, (G) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents, (H) no specific listing or scheduling of Collateral shall be required, (I) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such LiensMortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Collateral Agent), in each case(J) any joinder agreement or supplement with respect to any Person that is required to become a Subsidiary Loan Party or to deliver Collateral may, at the expense election of the Borrower, permit the qualification of any representations or warranties in any of the Loan PartiesDocuments by reference to schedules attached to such joinder or supplement to the extent necessary to ensure any such representation or warranty is true and correct and (K) the Collateral provided by any Loan Party may be limited to minimize stamp duty, notarization, registration or other applicable fees, taxes and duties where the benefit afforded to the Secured Parties is outweighed by such expenses (as determined by the Borrower in good faith).
(e) Subject to Section 5.10(d) and the other limitations on the requirement to create or perfect any security interest, Holdings shall, and shall cause its Subsidiaries to, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contraryLegal Reservations, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute execute any and all other further documents, Uniform Commercial Code financing statements, agreements and instruments, and take all such other further actions (including the filing and recording of Uniform Commercial Code financing statements statements, fixture filings, Mortgages and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy ensure the requirements set forth in this Section 5.10 perfection and in priority of the security interests created or intended to be created pursuant to the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfiedDocuments, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security DocumentsLoan Parties.
(5f) Notwithstanding For the avoidance of doubt, notwithstanding anything to the contrary,
(a) contrary contained herein or in any other Loan Document, Holdings, the other provisions of this Section 5.10 need Borrower and the Subsidiaries shall not be satisfied obligated hereunder or thereunder to enter into any Hedging Agreement in connection with hedging interest rate exposure with respect to any (i) US Excluded Assets or US Excluded Equity Interests the Loan Obligations, the Loans or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant extensions of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States credit hereunder or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside other Indebtedness of Holdings, the United States Borrower or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insuranceSubsidiary.
Appears in 2 contracts
Sources: Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.), Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject Furnish to the Guaranty and Security Principles), Collateral Agent within 45 20 calendar days of such event (or such longer period later date as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization legal name;
(b) organizational structure (including jurisdiction type of incorporation)organization;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) orjurisdiction of organization; except, solely if required for perfecting a security interest in the applicable jurisdictioncase of each of the foregoing clauses (a) through (c), Federal Taxpayer Identification Numberin connection with the Impax Conversion. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(43) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, request in writing to the Borrower to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(54) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent;); and
(c) (i) no actions will be required (A) outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any Specified Foreign Jurisdiction non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings or other agreements or documents governed by under the laws of any jurisdiction other than the non-United States jurisdiction or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the non-United States or any Specified Foreign Jurisdiction searches will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.), Term Loan Credit Agreement (Impax Laboratories, LLC)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) owns fee simple title in Real Property on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof and owns hereof, that, combined with all other Real Property owned in fee simple title by the Loan Parties on the date of such acquisition or joinder, as applicable, has an aggregate fair market value (as determined in Real Property located in good faith by a Responsible Officer of the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), Borrower) of $50.0 million or more within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) 20 Business Days after such acquisition or entry of a joinder (as applicable), such Loan Party shall ):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:thereof;
(ab) cause any such acquired or owned Owned Material Real Property owned in fee simple that has a fair market value (as applicabledetermined in good faith by a Responsible Officer of the Borrower) located in the United States of $7.5 million or more to be subjected to a Mortgage customary mortgage or deed of trust securing the Obligations;
(b) (Ac) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agentpolicies, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company customary amounts (the “Title CompanyMortgage Policies”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent);
(cd) to the extent necessary to issue the Mortgage Policies, obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping form surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program)risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name;
(b) organizational structure (including jurisdiction of incorporation)structure;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Closing Date Conversions. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesAgreement;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent;; and
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, foreign law mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any foreign intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Neiman Marcus Group LTD Inc.), Revolving Credit Agreement (Neiman Marcus Group LTD Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United StatesProperty, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 60 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall ):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:);
(ab) cause any such acquired or owned Owned Material Real Property (as applicable) located that has a fair market value (as determined in good faith by a Responsible Officer of the United States Borrower) of $7.5 million or more to be subjected to a Mortgage securing the ObligationsObligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(bc) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than 125% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, and all recording, recording and stamp taxes (including mortgage recording and intangible taxes taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent. (the “ Mortgage Policies”);
(cd) obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Administrative Agent without any standard providing all reasonably required survey exceptions coverage and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageendorsements;
(de) ensure that the The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program)Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event (C) if any such property Flood Certificate states that a Mortgaged Property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (y2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence all applicable regulations of the payment Board of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative AgentGovernors;
(ef) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program)risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(fg) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(gh) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name;
(b) organizational structure (including jurisdiction of incorporation)structure;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number;
(e) except, in the case of each of the foregoing clauses (a) through (c), in connection with the LLC Conversion. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesAgreement;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent;; and
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, foreign law mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any foreign intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (PET Acquisition LLC), Term Loan Credit Agreement (PET Acquisition LLC)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject Furnish to the Guaranty and Security Principles), Collateral Agent within 45 20 calendar days of such event (or such longer period later date as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization legal name;
(b) organizational structure (including jurisdiction type of incorporation)organization;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (cd), in connection with the Impax Conversionto the extent such information is necessary to enable the Collateral Agent to perfect or company identification number (or equivalent) or, solely if required for perfecting a maintain the perfection and priority of its security interest in the applicable jurisdiction, Federal Taxpayer Identification NumberCollateral of the relevant Loan Party. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(43) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, request in writing to the Borrower to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(54) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent;); and
(ci) no actions will be required (A) outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any Specified Foreign Jurisdiction non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings related to any Intellectual Property Rights or other agreements or documents governed by under the laws of any jurisdiction other than the non-United States jurisdiction or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the non-United States or any Specified Foreign Jurisdiction searches will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(i) subject Subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Guaranty, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US U.S. Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US the U.S. Loan Parties, US U.S. Excluded Equity Interests), pledge the outstanding Equity Interests (other than U.S. Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires d’actionnaires, representing such Equity Interests, together with stock powers, stock transfer forms forms, or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee or agent thereof) Uniform Commercial Code financing statements UCC or equivalent financing statements in any Specified Foreign Jurisdiction financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security DocumentsDocuments to the extent provided for in the Guaranty and Security Principles; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) ), and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) ), such Loan Party shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States (as applicable) that has to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, subject to any applicable Legal Reservations, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call so called comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent, provided that no such Real Property located in the United States shall be subjected to a Mortgage until such time as the Administrative Agent shall have received written confirmation from each applicable Lender that such Lender has completed all flood insurance due diligence and flood insurance compliance in each case as required by the Flood Program (such written confirmation not to be unreasonably withheld, conditioned or delayed), and for the avoidance of doubt, the 45 or 90 day period, as applicable, for the satisfaction of the requirements of this clause (2) shall be automatically extended pending such confirmation;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, flood if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is are located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured PartiesParties and such waiver would not result in the violation of applicable law.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US U.S. Excluded Assets or US U.S. Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US U.S. Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocuments;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property Intellectual Property Rights filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 12060 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject Furnish to the Guaranty and Security Principles), Collateral Agent within 45 20 calendar days of such event (or such longer period later date as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization legal name;
(b) organizational structure (including jurisdiction type of incorporation)organization;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers jurisdiction of organization; The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(43) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably requestrequest in writing to the Borrower, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(54) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the Term Priority Collateral, the Borrower and the Term Agent;); and
(c) (i) no actions will be required (A) outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any Specified Foreign Jurisdiction non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings related to any Intellectual Property Rights or other agreements or documents governed by under the laws of any jurisdiction other than the non-United States jurisdiction or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the non-United States or any Specified Foreign Jurisdiction searches will be required; and.
(d5) the Administrative Agent The Borrower shall not enter into any Mortgage be required to pledge its equity investment in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered Amneal Complex Products Research LLC solely to the Lenders extent that such equity investment is pledged under the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Term Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insuranceDocuments.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 60120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions and other limitations set forth in this Section 5.10 or the applicable Security Documents Documents, (including, with respect and subject to US Loan Parties, US Excluded Equity Interests), the exceptions and other limitations set forth herein) pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions and other limitations set forth in this Section 5.10 or the Security Documents, (and subject to the exceptions and other limitations set forth herein) deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject Furnish to the Guaranty and Security Principles), Collateral Agent within 45 20 calendar days ofafter such event (or such longer period later date as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization legal name;
(b) organizational structure (including jurisdiction type of incorporation)organization;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational jurisdiction of organization; in the case of each of the foregoing clauses (a) through (d), to the extent such information is necessary to enable the Collateral Agent to perfect or company identification number (or equivalent) or, solely if required for perfecting a maintain the perfection and priority of its security interest in the applicable jurisdiction, Federal Taxpayer Identification NumberCollateral of the relevant Loan Party. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(43) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably requestrequest in writing to the Borrower, in each case, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(54) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the Term Priority Collateral, the Borrower and the Term Agent;); and
(c) (i) no actions will be required (A) outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any Specified Foreign Jurisdiction non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States filings related to any Intellectual Property Rights or other agreements or documents governed by under the laws of any jurisdiction other than the non-United States jurisdiction or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the non-United States or any Specified Foreign Jurisdiction searches will be required; and.
(d5) the Administrative Agent The Borrower shall not enter into any Mortgage be required to pledge its equity investment in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered Amneal Complex Products Research LLC solely to the Lenders extent that such equity investment is pledged under the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Term Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insuranceDocuments.
Appears in 1 contract
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings or any Borrower is formed or acquired after the Closing Date Date, or (b) an Unrestricted if a Subsidiary is redesignated as a Restricted Subsidiary that is not ceases to be an Excluded Subsidiary, within five Business Days as applicable, promptly after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted ceases to be an Excluded Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, if such Subsidiary is organized under the laws of the United States or Canada, then within 60 sixty (60) days after the date such Restricted Subsidiary is formed or acquired or ceased to be an Excluded Subsidiary, as applicable (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings and the Borrowers will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(ia) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Guaranty, substantially in the form specified therein, duly executed on behalf of such Restricted SubsidiarySubsidiary and (b) if such Subsidiary is a Subsidiary of Holdings and not a Subsidiary of a Borrower (or if Holdings designates such Subsidiary as an additional Borrower pursuant to Section 1.18), such Subsidiary shall join the Revolver Facility as a “Borrower” and deliver a joinder to this Credit Agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(ii) with respect to a Domestic Subsidiary, deliver a joinder to the US U.S. Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Canadian Subsidiary, deliver a joinder to the Canadian Collateral Agreement substantially in the form specified therein and, in each case, such other appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US the U.S. Loan Parties, US U.S. Excluded Equity Interests and, with respect to the Canadian Loan Parties, Canadian Excluded Interests), pledge the outstanding Equity Interests (other than U.S. Excluded Equity Interests and Canadian Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party Person owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction Canada in order to create or perfect any security interest in any Equity InterestsInterests except in respect of the U.K. Security Documents.
(iv) to To the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee or agent thereof) Uniform Commercial Code financing statements UCC or equivalent financing statements in any Specified Foreign Jurisdiction Canada with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties[Reserved].
(3) Furnish to the Collateral Agent five Business Days fifteen (15) days prior written notice of any change in any Loan Party’s’s or Limited Recourse Pledgor:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US U.S. Excluded Assets or US U.S. Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US U.S. Collateral Agreement, (ii) Canadian Excluded Assets or Canadian Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the Canadian Collateral Agreement and (iiiii) any assets or other exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocuments;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;; and
(c) except in respect of the U.K. Security Documents, no actions will be required outside of the United States or any Specified Foreign Jurisdiction Canada in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction Canada and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign JurisdictionCanada, or any intellectual property Intellectual Property Rights filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction Canada will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(i) subject Subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Guaranty, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US U.S. Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US the U.S. Loan Parties, US U.S. Excluded Equity Interests), pledge the outstanding Equity Interests (other than U.S. Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires d’actionnaires, representing such Equity Interests, together with stock powers, stock transfer forms forms, or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee or agent thereof) Uniform Commercial Code financing statements UCC or equivalent financing statements in any Specified Foreign Jurisdiction financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security DocumentsDocuments to the extent provided for in the Guaranty and Security Principles; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) ), and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) ), such Loan Party shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States (as applicable) that has to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, subject to any applicable Legal Reservations, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call so called comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, flood if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is are located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US U.S. Excluded Assets or US U.S. Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US U.S. Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocuments;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property Intellectual Property Rights filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or Date, promptly (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiaryand in any event, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, (5) days thereafter) notify the Collateral Agent thereof and, within 60 thirty (30) days after written request of the date such Restricted Subsidiary is formed or acquired Administrative Agent (acting at the direction of the Required Lenders) (or such longer period as the Administrative Agent Agent, acting at the direction of the Required Lenders may agree in its sole discretionagree), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to in a manner consistent with the Guaranty and Security Principles):DIP Financing Orders) use commercially reasonably efforts to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii2) Use commercially reasonable efforts (in a manner consistent with the DIP Financings Orders) to (i) cause Subsidiaries that are not Loan Parties to pledge all or substantially all of their assets to secure the extent required by and subject to Obligations of the exceptions set forth in Loan Parties, (ii) obtain the applicable Security Documents (including, consent of third parties with respect to US Loan Parties, US Excluded Equity Interests), the pledge the outstanding of Equity Interests owned by such Restricted Subsidiaryof Joint Ventures, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; Lake C▇▇▇▇▇▇ ▇▇ and (Ciii) a title report issued by cause Loan Parties to pledge any assets to secure the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions Obligations not previously pledged to title or otherwise referred to therein, each in form and substance reasonably satisfactory secured the Obligations to the Collateral Agent;extent such pledge is consistent with the DIP Financing Orders.
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with Use commercially reasonable efforts to deliver the Flood Program; corporate organizational documents, good standing certificates, incumbency and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zonespecimen signatures, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agentforeign legal opinions, and (z) evidence of the payment of premiums in respect thereof in form such other documents and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent deliverables as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, Required Lenders in each case, at a manner consistent with the expense of the Loan Parties, subject to paragraph DIP Financing Orders (5) of this Section 5.10. Notwithstanding anything herein to the contrary, extent such items were not otherwise delivered on the Closing Date) to the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation prior to the benefits to be obtained therefrom by date of entry of the Secured PartiesFinal DIP Financing Order.
(34) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect effectuate or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise period that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(45) Execute As reasonably requested by the Required Lenders in writing, use commercially reasonable efforts to execute any and all other documents, financing statements, agreements and instruments, instruments and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be are required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy document the requirements set forth in this Section 5.10 and in the Security Documents DIP Financing Orders with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(56) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets Collateral or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents Documents, to the extent provided for in not conflicting, or otherwise inconsistent, with the Guaranty and Security PrinciplesDIP Financings Orders;
(b) neither Holdings nor the other Loan Parties no actions will be required to grant a security interest in any asset or perfect a security interest in any Collateral with respect to the extent grant and perfection of security interests that are granted and perfected pursuant to the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs DIP Financing Orders according to the benefit of applicable law and in accordance with the security afforded thereby as reasonably determined by Holdings and Lien priorities set forth in the Administrative AgentDIP Financing Orders;
(c) without limitation of clause (ii) above, no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
to: (i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
; (ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
and (viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.. 138 US-DOCS\97700238.15141444430.9
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject Furnish to the Guaranty and Security Principles), Collateral Agent within 45 20 calendar days of such event (or such longer period later date as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
: (a) Corporate, company or organization legal name;
; (b) organizational structure (including jurisdiction type of incorporation);
organization; (c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address ; or location of chief executive office; or
(d) organizational or company identification number (or equivalent) orjurisdiction of organization; except, solely if required for perfecting a security interest in the applicable jurisdictioncase of each of the foregoing clauses (a) through (c), Federal Taxpayer Identification Numberin connection with the Impax Conversion. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(43) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, request in writing to the Borrower to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(54) Notwithstanding anything to the contrary,
, (a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If Subject to Section 5.13:
(a) a Restricted Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any applicable law, or that the Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) [Reserved].
(c) [Reserved].
(d) If any additional direct or indirect Wholly-Owned Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (bincluding pursuant to a Division/Series Transaction) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is redesignated as a Restricted Domestic Subsidiary that is not an Excluded SubsidiaryUnrestricted Subsidiary or a FSHCO (other than, at the Borrower’s option, Immaterial Subsidiaries), within five ten Business Days after the date such Restricted Wholly-Owned Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly-Owned Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion)shall agree, Holdings will or will cause such Restricted Subsidiary the Collateral and Guarantee Requirement to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) be satisfied with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, such Wholly-Owned Subsidiary and with respect to any Foreign Subsidiary, appropriate Security Documents (Equity Interest in or amendments, supplements Indebtedness of such Wholly-Owned Subsidiary owned by or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests), pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
paragraph (f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Partiesbelow.
(3i) Furnish to the Collateral Administrative Agent five Business Days at least ten (10) days prior written notice of any change (A) in any Loan Party’s:
(a) Corporate, company ’s corporate or organization name;
, (bB) in any Loan Party’s identity or organizational structure structure, or (including jurisdiction C) in any Loan Party’s organizational identification number; provided that none of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not Loan Parties shall effect or permit any such change unless all filings have been made, or will be have been made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, interest in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein Parties and in (ii) promptly notify the Security Documents and to cause such requirement to be and remain satisfied, all at the expense Administrative Agent if any material portion of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documentsis damaged or destroyed.
(5f) Notwithstanding anything to the contrary,
(a) The Collateral and Guarantee Requirement, and the other provisions of this Section 5.10 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) US Excluded Assets [reserved], (ii) [reserved], (iii) pledges and security interests to the extent prohibited by applicable law, rule, regulation or US Excluded Equity Interests contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) [reserved], (v) any assets, to the extent a security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, and (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law; provided that (A) upon the reasonable request of the Administrative Agent, Holdings and the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clause (iii) above, and (B) the foregoing exclusions of clause (iii), (vi), or (viii) above shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) to apply to the extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and carve-outs liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the taking of any other actions to perfect by control any security interest in any deposit accounts, securities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the requirements of creating or perfecting security interests in or the obtaining of legal opinions with respect to particular assets (including extensions beyond the Amendment Two Effective Date for the perfection requirements set forth of security interests in the US Collateral assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, and (ii) any assets or other exclusions Liens required to be granted from time to time pursuant to this Agreement and carve-outs from grant of security the Security Documents shall be subject to exceptions and perfection requirements limitations set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insuranceDocuments.
Appears in 1 contract
Sources: Credit Agreement (Verso Corp)
Further Assurances; Additional Security. (1) If The Security Documents and each other guaranty or security document delivered or to be delivered under this Agreement and any obligation to enter into such document or obligation by any Subsidiary and any Loan Party shall be subject in all respects to the Agreed Security Principles. This Agreement, including but not limited to Section 10.29, and all of the other Loan Documents shall be subject in all respects to Agreed Security Principles and any limitations set out in any joinder or guarantee agreement in relation to this Agreement or any other Loan Document.
(2) Subject in each case to the Agreed Security Principles, if (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired (including, without limitation, upon the formation of any Subsidiary (other than an Excluded Subsidiary) that is a Delaware Divided LLC)) after the Closing Date or Date, (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is does not constitute an Excluded SubsidiarySubsidiary or (c) an Excluded Subsidiary ceases to be an Excluded Subsidiary (including as a result of notice by the Borrower pursuant to the definition of Excluded Subsidiary or ceasing to be an Immaterial Subsidiary as of the date the latest financial statements are delivered pursuant to Section 5.04), in each case, within five ninety 90 Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify of the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable event described above (or such longer period as the Administrative Agent may agree in its sole reasonable discretion), Holdings the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to each of the Guaranty and the Collateral Agreement (and or, in the case of any Foreign Subsidiary, the equivalent Security Document or a new local law Security Document which shall be substantially consistent with the analogous existing Security Documents (if any) and subject to the Guaranty and Agreed Security Principles):
(i) subject to any relevant guarantee limitation), deliver a joinder to the Guaranty substantially in the form specified thereintherein (or such other form as agreed between the Borrower and the Administrative Agent), duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Administrative Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or 5.10, the Security Documents, deliver to the Collateral Administrative Agent (or a designated bailee thereof) Uniform Commercial Code and PPSA financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Administrative Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by or in a manner consistent with the Security Documents; and;
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it (including resolutions of the board of directors or specimen signatures and any other customary certificates of authorized officers of each relevant Restricted Subsidiary, in each case as the Administrative Agent may request) in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder; and
(v) deliver to the Administrative Agent all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering laws, rules and regulations (including, without limitation, the USA Patriot Act and CAML) with respect to such Restricted Subsidiary as have been reasonably requested in writing by the Administrative Agent. Notwithstanding anything in this clause (1) or elsewhere in this Agreement to the contrary, and without limiting any provision therein, no Loan Party shall be required to (i) pledge (or cause to be pledged) more than 65% of the voting Capital Stock in any Excluded Subsidiary that is a first-tier Foreign Subsidiary or a FSHCO, or any other equity securities of any other Subsidiary to the extent that the Borrower reasonably determines that such pledge would result in adverse tax consequences, (ii) cause a Subsidiary that is a CFC or FSHCO (or a Subsidiary that is otherwise prohibited from being a Guarantor pursuant to this Section 5.10) to join in the Guaranty or to become a party to any Security Document or (iii) comply with any obligation to enter into the Security Documents and each other guaranty and security document required to be delivered under this Agreement or comply with any other obligation under the Loan Documents (including with respect to perfection of security interests), in each case, to the extent to do so would be inconsistent with the Agreed Security Principles; provided that, for the avoidance of doubt, clause (i) or (ii) shall not apply to any Foreign Subsidiary that is organized or incorporated in an Approved Jurisdiction (or successors thereof) or any Equity Interests issued by any such Foreign Subsidiary.
(23) If Subject in each case to the Agreed Security Principles, if any Loan Party (a) acquires fee simple title in a Real Property located in the United States after the Closing Date that constitutes a Material Real Property at the time of the acquisition thereof or (b) enters a joinder pursuant to Section 5.10(1)(i5.10(2)(i) hereof and owns fee simple title in a Material Real Property located in the United StatesProperty, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall in each case other than with respect to any Material Real Property that constitutes an Excluded Asset:
(a) notify the Collateral Administrative Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:);
(ab) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the ObligationsObligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(bc) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies or other equivalent title insurance policies, in each case in form and substance reasonably satisfactory to Collateral the Administrative Agent, with endorsements (including zoning endorsements where available) and in an amount not less than to exceed the fair market value (as determined in good faith by the Borrower at the time of the acquisition thereof) of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Administrative Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, subject only to Permitted Liens, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Administrative Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Administrative Agent may reasonably request; provided that, reinsurance will not be required if the Title Policy has an insured value of less than $100,000,000, all of the foregoing in form and substance reasonably satisfactory to the Collateral Administrative Agent; (B) evidence reasonably satisfactory to the Collateral Administrative Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, and all recording, recording and stamp taxes (including mortgage recording and intangible taxes taxes) payable in connection with recording the Mortgages in the applicable real property estate records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Administrative Agent;
(cd) obtain (i) American Land Title Association/Association (“ALTA”) / National Society of Professional Surveyors land title surveysSurveyors, Inc. (successor to the American Congress on Surveying and Mapping) surveys or other equivalent surveys in form and substance satisfactory to the Administrative Agent, dated no more than 60 30 days before the date of their delivery to the Collateral Administrative Agent, certified to the Collateral Administrative Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Administrative Agent or (ii) if applicable, previously obtained ALTA/NSPS land title ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue each Title Policies Policy to the Collateral Administrative Agent without any standard providing all reasonably required survey exceptions coverage and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageendorsements;
(de) ensure that deliver to the Collateral Agent shall have received from each applicable Loan Party: (A) Administrative Agent, a completed Flood Certificate “life of the loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, United States (x) together with a notice about special flood hazard area status and flood disaster assistance, assistance duly executed by the BorrowerBorrower and the applicable Loan Party) and if any improvements on any such Mortgaged Property are located within a Flood Zone, (y) evidence of such flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if extent required pursuant to the Flood Programunder Section 5.02(1), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable1) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Properties owned in fee simple are located, and (2) due authorization, execution and delivery opinions from where the applicable Loan Party granting the Mortgage on such Mortgaged Property is locatedorganized or incorporated; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, .
(4) Within 30 days (or such longer period as the Administrative Agent may waive agree in its reasonable discretion) of the requirements of this Section 5.10(2) if applicable change, furnish notice to the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name (including any French form of name, English/French form of name or French/English form of name);
(b) organizational structure (including jurisdiction of incorporation)structure;
(c) location (determined as provided in UCC Section 9-307) (where applicable307 or the PPSA), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers The Borrower will not effect or permit any such change unless cause all filings have been made, or will to be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise other applicable law or regulation that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by a Loan Party that can be perfected by such filing in the state, province or other jurisdiction of organization or incorporation, chief executive office, registered office, head office, domicile (as determined under the Civil Code of Quebec) or location of tangible Collateral held by a Loan Party in any province or territory of Canada) or other applicable law or regulation of such Loan PartyParty and additional financing statements, if any, required in the District of Columbia for any Guarantors constituting Foreign Subsidiaries and fixture filings in connection with Mortgages (if any).
(45) Execute any and all other documents, financing statements, financing change statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements, financing change statements and other documents), not described in the preceding clauses (1) through and (3) and that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, request to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments to the extent required hereby.
(56) Notwithstanding anything to the contrarycontrary in this Agreement or any other Loan Document (and subject to the Agreed Security Principles),
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements expressly set forth in the US Collateral Agreement and (ii) or any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent (i) the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Borrower in its reasonably judgement in consultation with the Administrative AgentAgent or (ii) the granting of a security interest in such asset would be prohibited by enforceable anti-assignment provisions of contracts or applicable law or, in the case of assets consisting of licenses, agreements or similar contracts, to the extent the grant of security therein would violate the terms of such license, agreement or similar contract relating to such asset or would trigger termination of any contract pursuant to any “change of control” or similar provision, in each case, after giving effect to any applicable provisions of the Uniform Commercial Code, the PPSA or other applicable law;
(c) the Loan Parties will not be required to seek or obtain any third-party landlord lien waiver, estoppel (other than in respect of any applicable PPSA registrations), warehouseman waiver or other collateral access or similar letter or agreement;
(d) any liens on the following Collateral of any Loan Party organized in the United States will not be required to be perfected other than by filing of a UCC financing statement in the jurisdiction of organization of the Loan Party owning such Collateral:
(i) assets requiring perfection through control agreements or other control arrangements (other than control of pledged capital stock and material promissory notes to the extent otherwise required pursuant to the Security Documents (it being understood and agreed that perfection by control will not be required with respect to cash and cash equivalents, other deposit accounts and securities and commodities accounts (including securities entitlements and related assets)));
(ii) vehicles and any other assets subject to certificates of title;
(iii) commercial tort claims; and
(iv) letter of credit rights to the extent not perfected as supporting obligations by the filing of a UCC financing statement on the primary collateral;
(i) with respect to any Loan Party organized in the United States (including its Equity Interests and assets (other than Equity Interests of a Loan Party that is a Foreign Subsidiary)) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.p
Appears in 1 contract
Further Assurances; Additional Security. (1) If Subject to Section 5.13:
(a) a Restricted Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements and other documents), that may be required under any applicable law, or that the Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) [Reserved].
(c) [Reserved].
(d) If any additional direct or indirect Wholly-Owned Subsidiary (other than an Excluded Subsidiary) of Holdings is formed or acquired after the Closing Date or (bincluding pursuant to a Division/Series Transaction) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is redesignated as a Restricted Domestic Subsidiary that is not an Excluded SubsidiaryUnrestricted Subsidiary or a FSHCO (other than, at the Borrower’s option, Immaterial Subsidiaries), within five ten Business Days after the date such Restricted Wholly-Owned Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly-Owned Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its sole discretion)shall agree, Holdings will or will cause such Restricted Subsidiary the Collateral and Guarantee Requirement to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) be satisfied with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, such Wholly-Owned Subsidiary and with respect to any Foreign Subsidiary, appropriate Security Documents (Equity Interest in or amendments, supplements Indebtedness of such Wholly-Owned Subsidiary owned by or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests), pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(iv) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(v) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles), within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
paragraph (f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Partiesbelow.
(3i) Furnish to the Collateral Administrative Agent five Business Days at least ten (10) days prior written notice of any change (A) in any Loan Party’s:
(a) Corporate, company ’s corporate or organization name;
, (bB) in any Loan Party’s identity or organizational structure structure, or (including jurisdiction C) in any Loan Party’s organizational identification number; provided that none of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not Loan Parties shall effect or permit any such change unless all filings have been made, or will be have been made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, interest in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein Parties and in (ii) promptly notify the Security Documents and to cause such requirement to be and remain satisfied, all at the expense Administrative Agent if any material portion of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documentsis damaged or destroyed.
(5f) Notwithstanding anything to the contrary,
(a) The Collateral and Guarantee Requirement, and the other provisions of this Section 5.10 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) US Excluded Assets [reserved], (ii) [reserved], (iii) pledges and security interests to the extent prohibited by applicable law, rule, regulation or US Excluded Equity Interests contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) [reserved], (v) any assets, to the extent a security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, and (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law; provided that (A) upon the reasonable request of the Administrative Agent, Holdings and the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clause (iii) above, and (B) the foregoing exclusions of clause (iii), (vi), or (viii) above shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) to apply to the extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and carve-outs liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the taking of any other actions to perfect by control any security interest in any deposit accounts, securities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the requirements of creating or perfecting security interests in or the obtaining of legal opinions with respect to particular assets (including extensions beyond the Amendment TwoThree Effective Date for the perfection requirements set forth of security interests in the US Collateral assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, and (ii) any assets or other exclusions Liens required to be granted from time to time pursuant to this Agreement and carve-outs from grant of security the Security Documents shall be subject to exceptions and perfection requirements limitations set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insuranceDocuments.
Appears in 1 contract
Sources: Credit Agreement (Verso Corp)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings or any Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded SubsidiaryDate, within five Business Days promptly after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted ceases to be an Excluded Subsidiary, as applicable, notify the Collateral Administrative Agent thereof and, within 60 sixty (60) days after the date such Restricted Subsidiary is formed or acquired or such Subsidiary ceases to be an Excluded Subsidiary, as applicable, (or such longer period as the Administrative Agent Agent, acting at the direction of the Required Lenders may agree in its sole discretionagree), Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(ia) subject to any relevant guarantee limitationlimitation or limitations included in the Guaranty and Security Principles, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(iib) with respect to a Domestic Subsidiary, deliver a joinder to the US U.S. Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, deliver appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iiic) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US the U.S. Loan Parties, US U.S. Excluded Equity Interests and with respect to the Canadian Loan Parties, Canadian Excluded Equity Interests), pledge the outstanding Equity Interests owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests, and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.
(ivd) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee or agent thereof) Uniform Commercial Code financing statements UCC or equivalent financing statements in any Specified Foreign Jurisdiction financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security DocumentsDocuments or to the extent provided for in the Guaranty and Security Principles; and
(ve) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i5.10(1)(a) hereof and owns fee simple title in Real Property located in the United States, then, in each case (and with respect to any non-US U.S. Loan Party, subject to the Guaranty and Security Principles), within 45 thirty (30) days (or such longer period as the Administrative Agent Agent, acting at the direction of the Required Lenders, may agree in its sole discretionagree) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent Agent, acting at the direction of the Required Lenders, may agree in its sole discretionagree) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretionat the direction of the Required Lenders) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings theany Borrower is formed or acquired or ceases to be an Excluded Subsidiary after the Closing ClosingAmendment No. 2 Effective Date or or, (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not an Excluded Subsidiary, within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, or (c) an Immaterial Subsidiary existing on the Amendment No. 2 Effective Date is not dissolved, liquidated or merged out of existence within 90 days following such date, then, in each case, the Lead Borrower shall promptly notify the Collateral Agent thereof and, within 60 days 2015 Business Days after the date such Restricted Subsidiary is formed or, acquired or acquired redesignated or ceases to be an Excluded Subsidiary (or such longer period as the Administrative Collateral Agent may agree agrees), the in its sole discretion)discretion but not to exceed 20 Business Days unless otherwise agreed by the Required Lenders including through electronic means or e-mail) or, Holdings for Immaterial Subsidiaries, within 1 Business Day following the post-closing date set forth in clause (c) above, as applicable, the Lead Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign or Immaterial Subsidiary, subject to the Guaranty and Security Principles):as applicable, to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2A) If any Loan Party (ai)(a) acquires fee simple title in Real Property located in the United States after the Closing ClosingAmendment No. 2 Effective Date or (b) owns fee simple title in Real Property on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof, that, combined with all other Real Property owned in fee simple by the Loan Partiesin each case of subclauses (a) and (b) of this clause (A)(i), on the date of such acquisition or joinder, as applicable, has an aggregateindividual fair market value (as determined in good faith by a Responsible Officer of the Lead Borrower in consultation with the Collateral Agent) of $50.0 million or more within 20 Business Days 2.5 million or more or (ii)(a) acquires a leasehold interest in Real Property after the Amendment No. 2 Effective Date with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center or (b) owns leasehold title in Real Property with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United Statesor (B) any Non-Mortgageable Lease of a Loan Party with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center ceases to be a Non-Mortgageable Lease hereunder, then, then in each case of the foregoing clauses (A) and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)(B) above, within 45 days 20 Business Days (unless otherwise agreed by the Required Lenders including through electronic means or such longer period as the Administrative Agent may agree in its sole discretion) after e-mail)after such acquisition or entry of a joinder or such Non-Mortgageable Lease ceases to be a Non-Mortgageable Lease hereunder (as applicable), such Loan Party shall ):
(a) notify the Collateral Agent thereof of thereof;
(b) cause any such acquired or owned Real Property located owned in the United States fee simple that has a fair market value (as applicable) and (i) no earlier than 45 days (or such longer period as determined in good faith by a Responsible Officer of the Administrative Agent may agree Lead Borrower in its sole discretion) after such notice is given to consultation with the Collateral Agent and Agent) of $7.52.5 million or more to be subjected to a customary mortgage or deed of trust securing the Obligations (ii) no later other than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:2013 Term Loan Obligations);
(ac) cause any such acquired or owned Owned Material leasehold Real Property (as applicable) located in the United States to be subjected to a Mortgage customary mortgage or deed of trust securing the Obligations (other than the 2013 Term Loan Obligations);
(bd) (Ac) with respect to any such Real Property, to the extent requested by the Collateral Agent in its sole discretion, obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agentpolicies, with endorsements (including a standard survey endorsement or equivalent (only with respect to any such Real Property acquired or owned in fee simple) and zoning endorsements where available) and in an amount not customary amounts that in no event shall be less than the fair market value of each Mortgaged such Real Property that is (the “Mortgage Policies”);
(e) (d) with respect to any such Real Property acquired or owned in fee insuring the fee simple title pursuant to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered therebySection 5.10(2)(A), each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory extent necessary to issue the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies includingMortgage Policies, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping form surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits sufficient for the issuer of “no-change” with respect the Mortgage Policies to omit as an exception to each title policy the standard printed survey exception relating to such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageReal Property;
(df) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including risks, as are reasonably available for similar properties in the risk of damage caused by a flood, if required pursuant to the Flood Program), same geographical area and as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) (f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 60120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions and other limitations set forth in this Section 5.10 or the applicable Security Documents Documents, (including, with respect and subject to US Loan Parties, US Excluded Equity Intereststhe exceptions and other limitations set forth herein), pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions and other limitations set forth in this Section 5.10 or the Security DocumentsDocuments (and subject to the exceptions and other limitations set forth herein), deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Any Loan Party (a) acquires fee simple title in that owns Material Real Property located in as of the United States Closing Date or after the Closing Date or (b) enters acquires any Material Real Property, shall deliver to the Collateral Agent counterparts of a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Mortgage, together with the Real Property located in the United StatesDeliverables, then, in each case (and with respect to any non-US Loan Party, subject each Material Real Property solely to the Guaranty extent required to be delivered pursuant to, and Security Principles)within the time periods set forth below (provided that to the extent any Material Real Property is located in a jurisdiction which imposes mortgage recording taxes, intangibles tax, documentary tax or similar recording fees or Taxes, the relevant Mortgage shall not secure an amount in excess of the fair market value (as reasonably estimated by the Borrower in good faith) of such Material Real Property) as follows:
A. within 45 one hundred fifty (150) days after the Closing Date (or such longer period as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicableagrees), such the Borrower will and/or will cause each Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and to deliver, with respect to each Material Real Property owned by such Loan Party as of the Closing Date, (i) no earlier than 45 a Mortgage and (ii) the Real Property Deliverables; and
B. within one hundred fifty (150) days after acquisition by any Loan Party of a Material Real Property (or after any Person who owns Material Real Property becomes a Loan Party) (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent agrees), the Borrower will and/or will cause such Loan Party to deliver, with respect to such Material Real Property, (i) a Mortgage and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral AgentDeliverables; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of contrary in this Section 5.10 need not be satisfied with respect 5.10, any actions relating to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security Principles;
(b) neither Holdings nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings and the Administrative Agent;
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds Liens on real property are governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.this Section 5.10(2);
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary that is not (other than an Excluded Subsidiary), within five Business Days 60 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired applicable (or such longer period as the Administrative Collateral Agent may agree in its sole discretionagrees), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty Collateral Agreement, substantially in the form specified thereintherein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Documents, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); provided, that notwithstanding the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security DocumentDocument or as otherwise agreed by the Collateral Agent, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If any Any Loan Party (a) acquires fee simple title in that owns Material Real Property located in as of the United States Closing Date or after the Closing Date or (b) enters acquires any Material Real Property, shall deliver to the Collateral Agent counterparts of a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Mortgage, together with the Real Property located in the United StatesDeliverables, then, in each case (and with respect to any non-US Loan Party, subject each Material Real Property solely to the Guaranty extent required to be delivered pursuant to, and Security Principles)within the time periods set forth below (provided that to the extent any Material Real Property is located in a jurisdiction which imposes mortgage recording taxes, intangibles tax, documentary tax or similar recording fees or Taxes, the relevant Mortgage shall not secure an amount in excess of the fair market value (as reasonably estimated by the Borrower in good faith) of such Material Real Property) as follows:
A. within 45 one hundred fifty (150) days after the Closing Date (or such longer period as the Administrative Collateral Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicableagrees), such the Borrower will and/or will cause each Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and to deliver, with respect to each Material Real Property owned by such Loan Party as of the Closing Date, (i) no earlier than 45 a Mortgage and (ii) the Real Property Deliverables; and
B. within one hundred fifty (150) days after acquisition by any Loan Party of a Material Real Property (or after any Person who owns Material Real Property becomes a Loan Party) (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent agrees), the Borrower will and/or will cause such Loan Party to deliver, with respect to such Material Real Property, (i) a Mortgage and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or owned Owned Material Real Property (as applicable) located in the United States to be subjected to a Mortgage securing the Obligations;
(b) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory Deliverables; Notwithstanding anything to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company contrary in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, all recording, stamp and intangible taxes payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) obtain (i) American Land Title Association/National Society of Professional Surveyors land title surveys, dated no more than 60 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Agent without any standard survey exceptions and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverage;
(d) ensure that the Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program), which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event any such property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower, (y) evidence of flood insurance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence of the payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(e) provide evidence of insurance naming the Collateral Agent as loss payee, additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program), as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is located; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein , any actions relating to the contrary, the Administrative Agent may waive the requirements of Liens on real property are governed by this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.);
(3) Furnish to the Collateral Agent five Business Days prior within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) written notice of any change in any Loan Party’s:
(a) Corporate, company or organization legal name;
(b) organizational structure (including jurisdiction type of incorporation)organization;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational jurisdiction of organization; in the case of each of the foregoing clauses (a) through (d), to the extent such information is necessary to enable the Collateral Agent to perfect or company identification number (or equivalent) or, solely if required for perfecting a maintain the perfection and priority of its security interest in the applicable jurisdiction, Federal Taxpayer Identification NumberCollateral of the relevant Loan Party. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through and (32) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, request in writing to the Borrower to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon Collateral Agent’s reasonable written request, evidence as to the perfection and priority of the Liens created by the Security DocumentsDocuments (subject to Permitted Liens).
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements requirements, as applicable, set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the applicable Security Documents to the extent provided for in the Guaranty and Security PrinciplesDocument;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Priority Collateral, the Borrower and the ABL Agent;); and
(ci) no actions will be required (A) outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States, (B) in any non-United States jurisdiction or (C) under the laws of any Specified Foreign Jurisdiction non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-United States filings related to any Intellectual Property Rights or other agreements or documents governed by under the laws of any jurisdiction other than the non-United States jurisdiction or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the non-United States or any Specified Foreign Jurisdiction searches will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of Holdings the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Excluded Subsidiary is redesignated as ceases to constitute an Excluded Subsidiary (but remains a Restricted Subsidiary that is not an Excluded Subsidiary), within five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Excluded Subsidiary is redesignated as a Restricted ceases to constitute an Excluded Subsidiary, as applicable, notify the Collateral Agent thereof and, within 60 45 days after the date such Restricted Subsidiary is formed or acquired or such Subsidiary ceases to constitute an Excluded Subsidiary (or such longer period as the Administrative Agent may agree in its sole discretion), Holdings the Borrower will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):to:
(i) subject to any relevant guarantee limitation, deliver a joinder to each of the Security Agreement and Guaranty substantially Agreement, in the form specified thereinannexed as Exhibit I to each of the Security Agreement and the Guaranty Agreement, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the US Collateral Agreement substantially in the form specified therein, and with respect to any Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in the same jurisdiction, in each case, duly executed on behalf of such Restricted Subsidiary;
(iii) to the extent required by and subject to the exceptions set forth in the applicable Security Documents (including, with respect to US Loan Parties, US Excluded Equity Interests)Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) or, in respect of a pledge governed by French law and as applicable, certified copies of the relevant registre de mouvements de titres and comptes d’actionnaires representing such Equity Interests, together with stock powers, stock transfer forms powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent collateral agent under the First Lien Loan Documents (or a designated bailee thereof); provided, that notwithstanding ) in accordance with the foregoing or in any Loan Document to the contrary, no actions will be required under the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any Equity Interests.Intercreditor Agreement;
(iviii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements or equivalent financing statements in any Specified Foreign Jurisdiction with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(viv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(2) If the Borrower or any Loan Party (a) acquires fee simple title in Real Property located in the United States after the Closing Date or (b) enters a joinder pursuant to Section 5.10(1)(i) hereof and owns fee simple title in Real Property located in the United StatesProperty, then, in each case (and with respect to any non-US Loan Party, subject to the Guaranty and Security Principles)case, within 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent thereof of such acquired or owned Real Property located in the United States (as applicable) and (i) no earlier than 45 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such notice is given to the Collateral Agent and (ii) no later than 90 days (or such longer period as the Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable) shall:):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Owned Material Real Property (as applicable) located that has a fair market value (as determined in good faith by a Responsible Officer of the United States Borrower) in excess of $5.0 million to be subjected to a Mortgage securing the ObligationsObligations unless such Real Property shall be subject to a Specified Sale and Lease-Back Transaction or other sale and lease-back transaction or is already mortgaged to a third party to the extent permitted by Section 6.02;
(bc) (A) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance reasonably satisfactory to Collateral Agent, with endorsements (including zoning endorsements where available) and in an amount not less than 100% of the fair market value of each Mortgaged Property that is owned in fee insuring the fee simple title to each of the fee owned Mortgaged Properties vested in the applicable Loan Party and insuring the Collateral Agent that the relevant Mortgage creates a valid and enforceable first priority Lien on the Mortgaged Property encumbered thereby, each of which title policy (“Title Policy”) (1) shall include all endorsements reasonably requested by the Collateral Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent; (B) evidence reasonably satisfactory to the Collateral Agent that the applicable Loan Party has (1) delivered to the title company (the “Title Company”) all certificates and affidavits reasonably required by the Title Company in connection with the issuance of the applicable Title Policy and (2) paid to the Title Company or to the appropriate Governmental Authorities all expenses and premiums of the Title Company and all other sums required in connection with the issuance of the Title Policies including, without limitation, and all recording, recording and stamp taxes (including mortgage recording and intangible taxes taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a title report issued by the Title Company with respect thereto, together with copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral AgentAgent (the “Mortgage Policies”);
(cd) obtain (i) American Land Title Association/National Society of Professional Surveyors land title American Congress on Surveying and Mapping surveys, dated no more than 60 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Title Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue Title Policies to the Collateral Administrative Agent without any standard providing all reasonably required survey exceptions coverage and with customary survey related endorsements and other coverages including, without limitation, public road access, survey, contiguity and so-call comprehensive coverageendorsements;
(de) ensure that deliver to the Collateral Agent shall have received from each applicable Loan PartyAgent: (A) a completed Flood Certificate with respect to each Mortgaged Property with any “building”, “structure” or “mobile home” (each as defined in Regulation H as promulgated by the Federal Reserve Board under the Flood Program)Property, which Flood Certificate shall (1) be addressed to the Collateral Agent, (2) be completed by a company which has guaranteed the accuracy of the information contained therein, and (3) otherwise comply with the Flood Program; and (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; in the event (C) if any such property Flood Certificate states that a Mortgaged Property is located in a Flood Zone, (x) a notice about special flood hazard area status and flood disaster assistance, duly executed by the Borrower’s written acknowledgement of receipt of written notification from the Collateral Agent (1) as to the existence of each such Mortgaged Property, and (y2) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (D) if any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the applicable Loan Party has obtained a policy of flood insurance that is in compliance with a financially sounds and reputable insurer, naming the Administrative Agent, as mortgagee, in an amount and otherwise in form and substance reasonably satisfactory to the Administrative Agent, and (z) evidence all applicable regulations of the payment Board of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative AgentGovernors;
(ef) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee, payee and additional insured and mortgagee with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks (including the risk of damage caused by a flood, if required pursuant to the Flood Program)risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(fg) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage, mortgage or deed of trust or deed to secure debt (as applicable) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Owned Material Real Property is Properties owned in fee simple are located; and
(gh) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to perfect such Liens, in each case, at the expense of the Loan Parties, subject to paragraph (5) of this Section 5.10. Notwithstanding anything herein to the contrary, the Administrative Agent may waive the requirements of this Section 5.10(2) if the Administrative Agent determines (in its sole discretion) that the burden, cost, time or consequences of obtaining such items is excessive in relation to the benefits to be obtained therefrom by the Secured Parties.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) Corporate, company corporate or organization name;
(b) organizational structure (including jurisdiction of incorporation)structure;
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) organizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the Borrowers The Borrower will not effect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial Code, the PPSA Code or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in favor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the BorrowersBorrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence as to the perfection and priority of the Liens created by the Security Documents.
(5) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) US Excluded Assets Property or US Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the US Collateral Agreement and (ii) any assets or other exclusions and carve-outs from grant of security and perfection requirements set forth in the Security Documents to the extent provided for in the Guaranty and Security PrinciplesAgreement;
(b) neither Holdings the Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by Holdings a Responsible Officer of the Borrower and the Administrative Agent;; and
(c) no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no foreign law security or pledge agreements, foreign law mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any foreign intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and.
(d6) the Administrative Agent shall not enter into any Mortgage in With respect of any real property acquired by any Loan Party to each Mortgaged Property set forth on Schedule 3.15(3), within 90 days after the Closing Date until the date that is (a) if or such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after longer period as the Administrative Agent has delivered to may agree in its sole discretion), the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to Borrower will or will cause the applicable Loan Parties Restricted Subsidiary to, deliver a Mortgage securing the Obligations and all items described in clauses 2(c)-(g) of that fact this Section 5.10 and (if applicablecomply with clause 2(h) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurancethis Section 5.10.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)