Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to: (i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof); (iii) 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 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 (iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent 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) legal name; (b) type of organization; (c) location (determined as provided in UCC Section 9-307); or (d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 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. (3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens). (4) Notwithstanding anything to the contrary, (a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document; (b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days 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 applicable, notify the Collateral Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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 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, that, combined with all other Real Property owned in fee simple by the Loan Parties on the date of such acquisition or joinder, as applicable, has an aggregate fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $50.0 million or more within 20 Business Days after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof;
(b) cause any such acquired Real Property owned in fee simple that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 million or more to be subjected to a customary mortgage or deed of trust securing the Obligations;
(c) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies, with endorsements (including zoning endorsements where available) and in customary amounts (the “Mortgage Policies”);
(d) to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent;
(e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(f) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real 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.
(3) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organizationorganizational 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 Impax ConversionClosing Date Conversions. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent 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) legal name;
(b) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Term Priority Collateral, the Borrower and the ABL Term Agent); and
(c) (i) no actions will be required (A) outside of the United States 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.), Revolving Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days 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 applicable, notify the Administrative Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 60 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 million or more to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance lawsFlood Insurance Laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure (including by division);
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; organizational 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 Impax LLC Conversion. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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) 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 (A) outside of the United States 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
(6) For the avoidance of doubt, and without limitation, this Section 5.10 shall apply to any division of a Loan Party and to any division of a Person required to become a Loan Party pursuant to the terms of the Loan Documents and to any allocation of assets to a series of a limited liability company.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
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) the designation in accordance with Section 5.12 of any existing Wholly-Owned Subsidiary of any Loan Party as a Restricted “restricted” Subsidiary that is 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 an any Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 (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 or (or y) ninety (90) days after such event for any such Subsidiary that is a Non-U.S. Subsidiary or, in each case, such longer period as the Collateral Administrative Agent agrees)may agree in its reasonable discretion, the Borrower will or will cause such Restricted Subsidiary to:
(i) execute and deliver the Guarantee Agreement (or a joinder to the Collateral Agreement, substantially in the form specified therein 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 Subsidiarythereto);
(ii) execute and deliver (x) if a U.S. Subsidiary, the Collateral Agreement (or a joinder or supplement thereto) and the other Security Documents required thereby, or (y) if a Non-U.S. Subsidiary, the appropriate Security Documents (or amendments, supplements or joinders thereto) 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, reasonably acceptable to the extent Administrative Agent;
(iii) execute and deliver counterpart signature page acknowledgments (or joinders or supplements, as applicable) to 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 this Section 5.10 or the Agreed Security Principles and any applicable Security Documents, pledge the outstanding Equity Interests (other than Excluded 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 (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity InterestsInterests (to the extent certificated), together with accompanied by undated stock 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; provided, that notwithstanding the foregoing and notwithstanding anything to the contrary in this Agreement or in any other Loan Document, 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 case of any US Loan Party, under New York law) in order to create or perfect any security interest in any Equity Interests;
(v) 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 a in any representative of the Collateral Agent designated bailee thereof);by it) valid first-priority perfected Liens (subject to Permitted Liens) required by the Collateral Agreement or other applicable Security Document; and
(iiivi) 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 5.10(a) as the Administrative Agent may reasonably request.
(b) (i) within sixty (60) days thereof, or such longer period as the Administrative Agent may agree in its 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 such longer period as the Administrative Agent may agree in its reasonable discretion, grant (or cause such Loan Party to grant) 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 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 shall cause the applicable Loan Party to, deliver to the Collateral Agent Agent, (A) (i) in the case of any Mortgaged Property located in the United States or a designated bailee any territory thereof) Uniform Commercial Code financing statements , or any foreign jurisdiction with respect to which title insurance is available and customarily obtained in connection with transactions similar to the Transactions, a policy or policies 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 acceptable to the Collateral Agent 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 Restricted Subsidiary customary endorsements (to the extent available in the subject jurisdiction and including zoning endorsements where reasonably appropriate and available) as the Collateral Agent may reasonably request or (ii) in any foreign jurisdiction to the extent title insurance is not so available and customarily obtained, but a title opinion is customarily obtained (and can be so obtained at a commercially reasonable cost), a title opinion covering the matters customarily covered in title opinions in the applicable jurisdiction, in form and substance reasonably acceptable to the Collateral Agent, (B) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property located in the United States (together with a notice about special flood hazard area status and flood disaster assistance) duly executed by the applicable Loan Party relating thereto, (C) if the Administrative Agent or the Collateral Agent reasonably determines (in consultation with Parent) that it is a requirement of 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 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 issue the customary survey related endorsements or otherwise reasonably acceptable to the Administrative Agent 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 documents matters customarily covered in real estate counsel opinions as the Administrative Agent may reasonably request, in form and substance reasonably acceptable to the Administrative Agent. With respect to each Mortgage for a Mortgaged Property located in the Commonwealth of Puerto Rico, the Loan Party owning such Mortgaged Property shall, if so requested by the Administrative Agent, execute and deliver in pledge to the Collateral Agent a demand bearer mortgage note in a principal amount equal to 110% of the fair market value of such Mortgaged Property (based on purchase price, appraisal or other valuation method reasonably satisfactory to the Collateral Agent), which mortgage note will be secured by such Mortgage and shall be pledged to the Collateral Agent pursuant to a supplement to the Collateral Agreement, and which mortgage note and supplement to the Collateral Agreement shall be in form and substance satisfactory to the Collateral Agent and accompanied by such other documentation as may be reasonably requested by the Collateral Agent to create in connection with the Liens intended to be created under recording and filing thereof. Notwithstanding the Security Documents and perfect such Liens 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 the extent required Lenders and L/C Issuers (which may be made available electronically on the Platform) the following documents in respect of such Real 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”, (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 receipt by the Security DocumentsParent of such notice; and
and (ivC) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral Agent, obtain all consents and approvals if such notice is required to be obtained by it provided to Parent and flood insurance is available in connection with the community in which such real property is located, evidence of required flood insurance and (AII) the execution Administrative Agent and delivery of all Security Documents 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 (or supplements thereto60) days after written notice to which it is a party and the granting by it Joint Lead Arrangers of the Liens thereunder acquisition of such Real Property, such Joint Lead Arranger shall be deemed to have consented to such Mortgage and (B) the performance of to have confirmed that its obligations thereunderflood insurance due diligence and flood insurance compliance is complete.
(2c) Furnish to the Collateral Agent within 20 calendar Within sixty (60) days of such event (or such later date as the Administrative Agent may approve) after the delivery of the certificate pursuant to Section 5.04(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 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 assets consistent with the liens granted by the other Loan Parties such that the Guarantor Coverage Test would be satisfied as of the last day of such Test Period.
(d) 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 may agree in its sole discretionaccordance 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 promptly (and in any event within 30 days after such change) written notice of any change (i) in any Loan Party’s:
’s corporate or organization name, (aii) legal name;
in any Loan Party’s identity or organizational structure, (biii) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) any Loan Party’s jurisdiction of organization; exceptorganization or (iv) with respect to any Loan Party organized under the laws of Puerto Rico or possessing collateral in Puerto Rico, any change in its location within the meaning of the Uniform Commercial Code as in effect in the case Commonwealth of each of the foregoing clauses (a) through (c)Puerto Rico; provided, in connection with the Impax Conversion. The Borrower 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 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 Borrower, 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 Documents (subject to Permitted Liens)change.
(4f) 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 (i) any Real Property held by Parent or any of its Subsidiaries as a lessee under a lease or any Real Property owned in fee that is not Owned Real Property or (ii) any Excluded Assets or Excluded Equity Interests Property. Notwithstanding anything to the contrary in this Agreement, the Collateral Agreement, or any exclusions and carve-outs from other 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 security Administrative Agent may grant extensions of time and/or waive the requirement for the creation or perfection requirementsof 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, as applicablein 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 (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 Collateral Agreement or other applicable Security Document;Documents and the Agreed Security Principles.
(bg) neither Parent shall or shall cause the Borrower nor applicable Loan Party to take such actions set forth on Schedule 5.10(g) within the other Loan Parties will be required to grant a security interest in any asset 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 a Responsible Officer of the Borrower and the Administrative Agent shall permit in its reasonable discretion) (or it being understood and agreed that all representations, warranties and covenants of the Loan Documents with respect to matters relating primarily the taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to the ABL Priority Collateral, the Borrower and the ABL Agentbe completed in accordance with this Section 5.10(g); and).
(ch) If any asset located in the Dominican Republic (i) no actions will be required (A) outside of the United States 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.than Real Property which is 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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days 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 applicable, notify the Collateral Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 60 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 million or more to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; organizational 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 Impax LLC Conversion. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days 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 applicable, notify the Administrative Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 60 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 million or more to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) The Collateral Agent shall have received from each applicable Loan Party: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; organizational 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 Impax LLC Conversion. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 2 contracts
Sources: Revolving Credit Agreement (PET Acquisition LLC), Revolving Credit Agreement (PET Acquisition LLC)
Further Assurances; Additional Security. (1) If (a) at any time after the Closing Date, a Restricted Subsidiary (other than an is designated by the Company as a Guarantor pursuant to the definition thereof or pursuant to the definition of “Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary”, then, within 120 days 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 of the applicable event described above (or such longer period as the Collateral Administrative Agent agreesmay agree in its reasonable discretion), the Borrower Company will or will cause each such Restricted Subsidiary to:
(ia) deliver a joinder to each of the Guaranty and the Collateral AgreementAgreement (or, in the case of any Foreign Subsidiary, the equivalent Loan Document), substantially in the form specified therein (or in such other form as is acceptable to such Restricted Subsidiary, agreed between the Borrower Company and the Administrative Agent), duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iiib) 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 and PPSA 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 or in a manner consistent with the Security Documents; and;
(ivc) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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; and
(d) 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.
(2) Furnish If at any time after the Closing Date, Holdings, the Company or any Restricted Subsidiary (other than an Excluded Subsidiary set forth in clauses (2), (3), (5) (solely with respect to Indebtedness incurred as the Collateral Agent within 20 calendar days sole obligation of such event Finance SPE (and, for the avoidance of doubt, not incurred or guaranteed by Holdings, the Company or any Restricted Subsidiary (other than a Finance SPE)), (6), (7), (8) and (9) of the definition thereof, unless such Excluded Subsidiary ceases to be an Excluded Subsidiary pursuant to such definition) incurs, issues or Guarantees any Material Springer Debt, then, within 60 days (or such later date longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion) written after the date of such issuance, incurrence or Guarantee, Holdings will, and will cause each such Restricted Subsidiary to:
(a) deliver such collateral agreements, mortgages or other security documents, intercreditor agreements (including an Acceptable Intercreditor Agreement and a joinder to the Securitization Intercreditor Agreement, if applicable), instruments and other documents, and take such other necessary actions, as are required to grant or otherwise provide to the Collateral Agent, for the benefit of the Secured Parties, junior priority Liens in such assets and properties (other than Excluded Assets) of the Loan Parties that do not constitute ABL Priority Collateral with respect to which corresponding senior priority Liens are granted or provided to the holders of such Material Springer Debt (or a Debt Representative acting on behalf of such holders) pursuant to the documentation governing such Material Springer Debt; and
(b) if such Restricted Subsidiary is not a Loan Party, deliver to the Collateral Agent duly authorized, executed and delivered copies of the Guaranty and any Security Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.10(1) as applied to such Restricted Subsidiary becoming a Loan Party, as applicable, hereunder and, regardless of whether such Restricted Subsidiary is a Loan Party on the date it becomes or is to become an additional Loan Party hereunder, Section 5.10(1) shall have been satisfied with respect to such Restricted Subsidiary.
(3) Within 30 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the applicable change, furnish notice to the Collateral Agent of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307307 or the PPSA); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. The Borrower Company 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 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, 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.
(34) 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 clause (1) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 BorrowerCompany, 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 Documents (subject to Permitted Liens)the extent required hereby.
(45) Notwithstanding anything to the contrarycontrary in this Agreement or any other Loan Document,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements expressly set forth in the Collateral Agreement or any other applicable Security Document;
(b) neither the Borrower Company 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 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 a Responsible Officer of the Borrower and Company in its reasonably judgement in consultation with the Administrative Agent or
(ii) the granting of a security interest in such asset would be prohibited by enforceable anti-assignment provisions of contracts or with respect to matters relating primarily applicable law or, in the case of assets consisting of licenses, agreements or similar contracts, to the ABL Priority Collateralextent 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 Borrower and the ABL Agent); andPPSA or other applicable law;
(c) (i) no actions the Loan Parties will not be required to seek or obtain any third-party landlord lien waiver, estoppel (Aother than in respect of any applicable PPSA registrations), warehouseman waiver or other collateral access or similar letter or agreement (including any Collateral Access Agreements);
(d) outside with respect to a Foreign Subsidiary that is a Borrower or Guarantor (including a Foreign Subsidiary that becomes a Guarantor at the election of the United States Company pursuant to the definition thereof), security to be provided, including foreign law security or pledge agreements, foreign law mortgages or deeds, and any actions to be taken in connection therewith in order to create or perfect any a security interest in any assets located outside of such Foreign Subsidiary, will be reasonably agreed by the United States, Company and the Administrative Agent and shall otherwise be subject to customary “Agreed Security Principles” consistent with financings of a type similar to the Transactions;
(Be) in any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction with respect to create any security interests required to be provided under Section 5.10(2)(a), no actions will be required to be taken in order to create or to perfect or make enforceable any such security interests, and (ii) no non-United States law security or pledge collateral agreements, non-United States law mortgages or deeds other security documents will be required to be entered into, in each case, that are not required to taken or non-United States intellectual property filings or other agreements or documents governed under entered into, as applicable, with respect to any corresponding security interests required to be provided in connection with any Material Springer Debt; and
(f) each of the laws Administrative Agent and Collateral Agent may grant extensions of time in respect of any non-United States jurisdiction time period for the delivery of any item of notification of any event under this Agreement or non-United States searches will be requiredany other Loan Document related to the guarantee and security interests in respect of the Loan Parties (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) in its reasonable discretion.
Appears in 2 contracts
Sources: Credit Agreement (Xerox Corp), Credit Agreement (Xerox Corp)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower 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 120 days 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 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 Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower Holdings will or will cause such Restricted Subsidiary to: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 Collateral Agreement, Guaranty substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, 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 DocumentsDocuments (including, with respect to US Loan Parties, US Excluded Equity Interests), 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 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.
(iiiiv) 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
(ivv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish 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 Collateral Agent Guaranty and Security Principles), within 20 calendar 45 days of such event (or such later date longer period as the Collateral 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) legal Corporate, company or organization name;
(b) type organizational structure (including jurisdiction of organizationincorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) jurisdiction of organization; exceptorganizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(45) 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, as applicable, requirements set forth in the US Collateral Agreement and (ii) any assets or other applicable exclusions and carve-outs from grant of security and perfection requirements set forth in the Security DocumentDocuments to the extent provided for in the Guaranty and Security Principles;
(b) neither the Borrower 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 a Responsible Officer of the Borrower Holdings 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 States or any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Specified Foreign Jurisdiction and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-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 agreements or documents governed under than the laws of any non-United States jurisdiction or non-United States searches 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. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of 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), within 120 days 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 applicable, notify the Collateral Agent thereof and, within 20 Business 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 Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(iiA) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iiiB) 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 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
(ivC) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 60 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $3.0 million or more to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder or is already mortgaged to a third party to the extent permitted by Section 6.02;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) deliver to the Collateral Agent: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Leslie's, Inc.), Term Loan Credit Agreement (Leslie's, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of 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), within 120 five Business Days after the date such Restricted Subsidiary is formed or acquired or such Excluded Subsidiary ceases to constitute an Excluded Subsidiary, as applicable, notify the Collateral Agent thereof and, within 45 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable ceases to constitute an Excluded Subsidiary (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to each of the Collateral Security Agreement and Guaranty Agreement, substantially in the form specified therein or in such other form annexed as is acceptable Exhibit I to such Restricted Subsidiary, each of the Borrower Security Agreement and the Administrative AgentGuaranty Agreement, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsAgreement, 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) representing such Equity Interests, together with stock 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)) in accordance with the Intercreditor Agreement;
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If the Borrower or any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 90 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) in excess of $5.0 million to be subjected to a Mortgage securing the Obligations 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;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) deliver to the Collateral Agent: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets Property or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
(6) With respect to each Mortgaged Property set forth on Schedule 3.15(3), within 90 days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole discretion), the Borrower will or will cause the applicable Restricted Subsidiary to, deliver a Mortgage securing the Obligations and all items described in clauses 2(c)-(g) of this Section 5.10 and comply with clause 2(h) of this Section 5.10.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the 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, within 120 days 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 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 2015 Business Days after the date such Restricted Subsidiary is formed or, acquired or redesignated or ceases to be an Excluded Subsidiary (or such longer period as the Collateral Agent agrees), the in its discretion but not to exceed 20 Business Days unless otherwise agreed by the Required Lenders including through electronic means or e-mail) or, 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 or Immaterial Subsidiary, as applicable, to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish to the Collateral Agent 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 If any Loan Party’s:
Party (i)(a) acquires fee simple title in Real Property after the 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) legal name;
and (b) type of organization;
this clause (c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (cA)(i), in connection with the Impax Conversion. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 date 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets acquisition or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirementsjoinder, as applicable, set forth has an aggregateindividual fair market value (as determined in the Collateral Agreement or other applicable Security Document;
(b) neither 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 good faith by a Responsible Officer of the Lead Borrower and in consultation with the Administrative Agent Collateral Agent) of $50.0 million or more within 20 Business Days 2.5 million or more or (or ii)(a) acquires a leasehold interest in Real Property after the Amendment No. 2 Effective Date with respect to matters relating primarily 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 ABL Priority Collateraldate it enters a joinder pursuant to Section 5.10(1)(i) hereof or (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 in each case of the foregoing clauses (A) and (B) above, within 20 Business Days (unless otherwise agreed by the Required Lenders including through electronic means or 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):
(a) notify the Collateral Agent thereof;
(b) cause any such acquired Real Property owned in fee simple that has a fair market value (as determined in good faith by a Responsible Officer of the Lead Borrower and in consultation with the ABL Collateral Agent) of $7.52.5 million or more to be subjected to a customary mortgage or deed of trust securing the Obligations (other than the 2013 Term Loan Obligations); and;
(c) cause any such acquired or owned leasehold Real Property to be subjected to a customary mortgage or deed of trust securing the Obligations (iother than the 2013 Term Loan Obligations);
(d) (c) 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, 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 customary amounts that in no actions will event shall be required less than fair market value of such Real Property (Athe “Mortgage Policies”);
(e) outside (d) with respect to any such Real Property acquired or owned in fee simple pursuant to Section 5.10(2)(A), to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the United States Mortgage Policies in order a manner reasonably satisfactory to create or perfect any security interest in any assets located outside the Collateral Agent and sufficient for the issuer of the United StatesMortgage Policies to omit as an exception to each title policy the standard printed survey exception relating to such Real Property;
(f) (e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, (B) and in any non-United States jurisdiction or (C) under such amounts and covering such risks, as are reasonably available for similar properties in the laws same geographical area and as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any non-United States jurisdiction to create any security interests mortgage or to perfect deed of trust;
(g) (f) obtain customary mortgage 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 under deed of trust enforceability opinions of local counsel for the laws of any non-United States jurisdiction or non-United States searches will be required.Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
Appears in 1 contract
Further Assurances; Additional Security. (1) If Subject to any applicable intercreditor agreement:
(a) a Restricted If any Subsidiary (other than an Excluded Subsidiary) of the Borrower that is not an Excluded Subsidiary is formed or acquired by any Loan Party after the Closing Date (including, without limitation, pursuant to an LLC Division or LP Division or the creation of a new Series LLC or Series LP) (bprovided that each of (i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary is redesignated as becoming a Restricted Subsidiary Loan Party and (ii) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Subsidiary, shall be deemed to constitute the acquisition of a Subsidiary for all purposes of this Section 5.10), within 120 days 10 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent in writing thereof and, within 30 Business Days after the date such Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Administrative Agent agrees)may agree in its reasonable discretion, the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable and Guarantee Requirement to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 be satisfied with respect to such Restricted Subsidiary and with respect to any Equity Interest in such other documents reasonably requested Subsidiary owned 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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 thereunderLoan Party.
(2b) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) prompt written notice of (and in any event within 30 days after) any change (A) in any Loan Party’s:
(a) ’s legal name;
, (bB) in any Loan Party’s type of organization;
, (cC) location (determined as provided in UCC Section 9-307); or
(d) any Loan Party’s jurisdiction of organization or (D) in the location of the chief executive office of any Loan Party that is not a registered organization; except, in provided that the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower will shall not effect or permit any such change unless all filings have been mademade by the Borrower, or will be have been made within any statutory period, by the Borrower under the Uniform Commercial Code within 30 days following such change (or otherwise such longer period as the Administrative Agent may agree in its reasonable discretion) 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 the Collateral held of such Loan Party in which a security interest may be perfected by such Loan Party.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Agentfiling, 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Sources: Credit Agreement (TravelCenters of America Inc. /MD/)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 12060 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent 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) legal name;
(b) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Term Priority Collateral, the Borrower and the ABL Term Agent); and
(c) (i) no actions will be required (A) outside of the United States 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
(5) The Borrower shall be required to pledge its equity investment in Amneal Complex Products Research LLC solely to the extent that such equity investment is pledged under the Term Loan Documents.
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 the Holdings or any Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted SubsidiaryDate, within 120 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 applicable, notify the Administrative Agent thereof and, within sixty (60) days after the date such Subsidiary is formed or acquired or such Subsidiary ceases to be an Excluded Subsidiary, as applicable, (or such longer period as the Collateral Agent agreesAdministrative Agent, acting at the direction of the Required Lenders may agree), the Borrower Holdings will or will cause such Restricted Subsidiary to:to (and in the case of any Foreign Subsidiary, subject to the Guaranty and Security Principles):
(ia) subject to any relevant guarantee limitation or limitations included in the Guaranty and Security Principles, deliver a joinder to the Collateral Agreement, Guaranty substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(iib) with respect to a Domestic Subsidiary, deliver a joinder to the 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 Subsidiary;
(c) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security DocumentsDocuments (including, with respect to the U.S. Loan Parties, U.S. Excluded Equity Interests and with respect to the Canadian Loan Parties, Canadian Excluded Equity Interests), 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 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.
(iiid) 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 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
(ive) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish 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)(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-U.S. Loan Party, subject to the Guaranty and Security Principles), within thirty (30) days (or such longer period as the Administrative Agent, acting at the direction of the Required Lenders, may agree) after such acquisition or entry of a joinder (as applicable), such Loan Party shall notify the Collateral Agent within 20 calendar days thereof of such event acquired or owned Real Property located in the United States (as applicable) and no later than 90 days (or such later date longer period as the Administrative Agent, acting at the direction of the Required Lenders, may agree) after such acquisition or entry of a joinder (as applicable) shall:
(a) cause any such acquired or 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 agree reasonably request, all of the foregoing in its sole discretionform and substance reasonably satisfactory to the Collateral Agent; (B) written notice 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 any change 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 any Loan Party’s:
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 (aC) legal name;
(b) type a title report issued by the Title Company with respect thereto, together with copies of organizationall recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to the Collateral Agent;
(c) location obtain (determined as provided 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 UCC Section 9a manner reasonably satisfactory to the Collateral Agent or (ii) if applicable, previously obtained ALTA/NSPS land title surveys and affidavits of “no-307); orchange” 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) jurisdiction 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 organizationthe information contained therein, and (3) otherwise comply with the Flood Program; exceptand (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 case of each Administrative Agent, and (z) evidence of the foregoing clauses payment of premiums in respect thereof in form and substance reasonably satisfactory to the Administrative Agent;
(ae) through 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 (cincluding 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 connection with the Impax Conversion. The Borrower will not effect or permit any states in which such change unless all filings have been madeacquired Owned Material Real Property is located; and
(g) take, or will cause the applicable Loan Party to take, such actions as shall be made within any statutory period, under the Uniform Commercial Code necessary or otherwise that are required in order for reasonably requested by the Collateral Agent to continue at all times following perfect such change to have a valid, legal and perfected security interest, for the benefit of the applicable Secured PartiesLiens, in all Collateral held by such Loan Party.
(3) Execute any and all other documentseach case, 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 BorrowerLoan Parties, 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 Documents (subject to Permitted Liens).
paragraph (45) of this Section 5.10. Notwithstanding anything herein to the contrary,
(a) , the other provisions Administrative Agent may waive the requirements of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b5.10(2) neither 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 a Responsible Officer of the Borrower and if the Administrative Agent determines (at the direction of the Required Lenders) that the burden, cost, time or with respect to matters relating primarily consequences of obtaining such items is excessive in relation to the ABL Priority Collateral, benefits to be obtained therefrom by the Borrower and the ABL Agent); and
(c) (i) no actions will be required (A) outside of the United States 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be requiredSecured Parties.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the 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 Subsidiary, within 120 days 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 applicable, notify the Administrative Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower Borrowers will or will cause such Restricted Subsidiary to:
(i) deliver a Borrower Joinder Agreement and a joinder to the applicable Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documentsapplicable 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 UCC 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 Documents; and;
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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; and
(v) if such Restricted Subsidiary qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, deliver a Beneficial Ownership Certification in relation to such Restricted Subsidiary upon reasonable request of the Administrative Agent; provided that no Restricted Subsidiary may join the Loan Documents until the Administrative Agent has completed its USA Patriot Act searches and the Administrative Agent and the Lenders have received all information that they reasonably determine is required by regulatory authorities in order to comply with their obligations under applicable “know your customer” and anti-money laundering rules and regulations.
(2) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. The Borrower Borrowers will not effect affect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial 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.
(3) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither the no 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 a Responsible Officer of the Borrower Representative 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States U.S. law security or pledge agreements, non-United States U.S. law mortgages or deeds or non-United States U.S. intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Sources: Loan Agreement (Ulta Beauty, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower Holdings is formed or acquired after the Closing Date or Date, promptly (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiaryand in any event, within 120 five (5) days thereafter) notify the Collateral Agent thereof and, within thirty (30) days after written request of the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable Administrative Agent (acting at the direction of the Required Lenders) (or such longer period as the Collateral Agent agreesAdministrative Agent, acting at the direction of the Required Lenders may agree), the Borrower Holdings will or will cause such Restricted Subsidiary to (and in the case of any Foreign Subsidiary, in a manner consistent with the DIP Financing Orders) use commercially reasonably efforts to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Collateral Agreement, Guaranty substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, 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 Subsidiary;
(2) 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 Obligations of the Loan Parties, (ii) obtain the consent of third parties with respect to the pledge of Equity Interests of Joint Ventures, including, without limitation, the Lake C▇▇▇▇▇▇ ▇▇ and (iii) cause Loan Parties to pledge any assets to secure the Obligations not previously pledged to secured the Obligations to the extent required by and subject to such pledge is consistent with the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);DIP Financing Orders.
(iii3) Use commercially reasonable efforts to deliver the extent required by corporate organizational documents, good standing certificates, incumbency and subject to the exceptions set forth in this Section 5.10 or the Security Documentsspecimen signatures, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary foreign legal opinions, and such other documents and deliverables as reasonably requested by the Collateral Agent to create Required Lenders in a manner consistent with the Liens intended to be created under the Security Documents and perfect such Liens DIP Financing Orders (to the extent required by such items were not otherwise delivered on the Security Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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 theretoClosing Date) to which it is a party and the granting by it Administrative Agent prior to the date of entry of the Liens thereunder and (B) the performance of its obligations thereunderFinal DIP Financing Order.
(24) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) five Business Days prior written notice of any change in any Loan Party’s:
(a) legal Corporate, company or organization name;
(b) type organizational structure (including jurisdiction of organizationincorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) jurisdiction of organization; exceptorganizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 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.
(35) 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) and (2) and that may be are required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Borrowers.
(46) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) Excluded Assets Collateral or US Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the US Collateral Agreement and (ii) any assets or other applicable exclusions and carve-outs from grant of security and perfection requirements set forth in the Security DocumentDocuments, to the extent not conflicting, or otherwise inconsistent, with the DIP Financings Orders;
(b) neither 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 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 with respect to the grant and perfection of security interests that are granted and perfected pursuant to the DIP Financing Orders according to the applicable law and in accordance with the Lien priorities set forth in the DIP Financing Orders;
(Ac) 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, (B) in States or any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Specified Foreign Jurisdiction and (ii) no non-United States law security or pledge agreements, non-United States law mortgages or deeds or non-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 agreements or documents governed under than the laws of any non-United States jurisdiction or non-United States searches 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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent 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) legal name;
(b) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (ccd), in connection with the Impax ConversionConversionto the extent such information is necessary to enable the Collateral Agent to perfect or maintain the perfection and priority of its security interest in the Collateral of the relevant Loan Party. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (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 and recordings of Liens in stock registries), 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 Borrower, 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) If any additional Subsidiary of the Borrower (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (bincluding, without limitation, upon the formation of any such Subsidiary that is a Division Successor) (with
(i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary is redesignated as becoming a Restricted Subsidiary being deemed to constitute the acquisition of a Subsidiary,
(ii) any Immaterial Subsidiary being designated a Material Subsidiary being deemed to constitute the acquisition of a Subsidiary and
(iii) any transaction or event resulting in a Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of such Subsidiary), within 120 days 30 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 such longer period as the Collateral Administrative Agent agreesshall agree), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable and Guarantee Requirement to such Restricted Subsidiary, the Borrower and the Administrative Agent, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 be satisfied with respect to such Restricted Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any other documents reasonably requested by the Collateral Agent Subsidiary Loan Party, subject 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
paragraph (ive) except as otherwise contemplated by of this Section 5.10 or any Security Document 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 thereunder5.10.
(2c) Furnish (i) In each case, furnish to the Collateral Administrative Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) 30 Business Days thereafter written notice of any change in any Loan Party’s:
(aA) legal corporate or organization name;
, (bB) type of organization;
organizational structure or (c) location (determined as provided in UCC Section 9-307); or
(dC) jurisdiction of organization; except, in the case of each organization (or other “location” for purposes of the foregoing clauses (aUCC) through (c)with respect to Holdings, in connection with the Impax Conversion. The Borrower will and the Subsidiary Loan Parties; provided that the Borrower shall not 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 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, interest in all Collateral for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired or ceases to be an Excluded Subsidiary after the Closing ClosingFourth Amendment Effective Date or or, (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 five or (c) an Immaterial Subsidiary existing on the Fourth Amendment Effective Date is not dissolved, liquidated or merged out of existence within 90 days following such date, then, in each case, the Borrower shall promptly notify the Collateral Agent thereof and, within 15 Business Days after the date such Restricted Subsidiary is formed or or, acquired or such Unrestricted Subsidiary is redesignated as a Restricted Restrictedor ceases to be an Excluded Subsidiary, as applicable applicable, notify (or such longer period as the Collateral Agent thereof andagrees in its discretion), or, for Immaterial Subsidiaries, within 201 Business Days afterDay following the post-closing date such Restricted Subsidiary is formed or acquiredset forth in clause (c) above (or such longer period as the Collateral Agent agrees), as applicable, the Borrower will or will cause such Restricted Subsidiary or Immaterial Subsidiary, as applicable, to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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.; and
(v) deliver all documentation and other information about such Restricted Subsidiary or Immaterial Subsidiary that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(2) (A) If any Loan Party (i)(a) acquires fee simple title in Real Property after the ClosingFourth Amendment 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 Borrower) of $50.0 million or more in consultation with the Collateral Agent) of $2.5 million or more or (ii)(a) acquires a leasehold interest in Real Property after the Fourth Amendment 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 or (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 in each case of the foregoing clauses (A) and (B) above, within 20 Business Days (unless otherwise agreed by the Collateral Agent in its sole discretion) after such acquisition or entry of a joinder or such Non-Mortgageable Lease ceases to be a Non-Mortgageable Lease hereunder (as applicable):
(a) notify the Collateral Agent thereof;
(b) cause any such acquired Real Property owned in fee simple that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 in consultation with the Collateral Agent) of $2.5 million or more to be subjected to a customary mortgage or deed of trust securing the Obligations;
(c) cause any such acquired or owned leasehold Real Property to be subjected to a customary mortgage or deed of trust securing the Obligations;
(d) (c) 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, 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 customary amounts that in no event shall be less than fair market value of such Real Property (the “Mortgage Policies”);
(e) (d) with respect to any such Real Property acquired or owned in fee simple pursuant to Section 5.10(2)(A), to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent, on behalf of itself and each Lender, and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent and sufficient for the issuer of the Mortgage Policies to omit as an exception to each title policy the standard printed survey exception relating to such Real Property;
(f) (e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance lawsFlood Insurance Laws) naming the Collateral Agent ason behalf of itself and each Lender as lender loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably available for similar for similar properties in the same geographical area and as are reasonably satisfactory to the Collateral Agent (including in the case of all insurance required to comply with applicable Flood Insurance Laws, in such amounts and covering such risks as are reasonably satisfactory to each Lender), including the insurance required by the terms of any mortgage or deed of trust;
(g) (f) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) (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.
(3) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 or otherwise that are solely if 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither the Borrower nor the other Loan Parties will be required to grant perfecting a security interest in any asset or perfect a security interest in any Collateral to the extent the costapplicable jurisdiction, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be requiredFederal Taxpayer Identification Number;.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the 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 Subsidiary, within 120 days 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 applicable, notify the Administrative Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower Borrowers will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the applicable Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documentsapplicable 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 UCC 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 Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) [Reserved].
(3) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. The Borrower Borrowers will not effect affect or permit any such change unless all filings have been made, or will be made within any statutory period, under the Uniform Commercial 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither the no 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 a Responsible Officer of the Borrower Representative 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States U.S. law security or pledge agreements, non-United States U.S. law mortgages or deeds or non-United States U.S. intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Sources: Loan Agreement (Ulta Beauty, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
: (i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
; (iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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.Security
(2) Furnish to the Collateral Agent 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) legal name;
; (b) type of organization;
; (c) location (determined as provided in UCC Section 9-307); or
or (d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
, (a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 60120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) 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), 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish Any Loan Party that owns Material Real Property as of the Closing Date or after the Closing Date acquires any Material Real Property, shall deliver to the Collateral Agent counterparts of a Mortgage, together with the Real Property Deliverables, with respect to each Material Real Property solely to the extent required to be delivered pursuant to, and within 20 calendar days 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 event Material Real Property) as follows:
A. within one hundred fifty (150) days after the Closing Date (or such later date longer period as the Collateral Agent may agree in its sole discretionagrees), the Borrower will and/or will cause each Loan Party (as applicable) written notice to deliver, with respect to each Material Real Property owned by such Loan Party as of any change in the Closing Date, (i) 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’s:
) (a) legal name;
(b) type of organization;
(c) location (determined or such longer period as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 or otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a validagrees), legal and perfected security interest, for the benefit of the applicable Secured Parties, in all Collateral held by Borrower will and/or will cause such Loan Party.
(3) Execute any and all other documentsParty to deliver, 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 such Material Real Property, (i) a Mortgage and (ii) 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Real Property Deliverables; 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 Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security DocumentLiens on real property are governed by this Section 5.10(2);
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 60 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Any Loan Party that owns Material Real Property as of the Closing Date or after the Closing Date acquires any Material Real Property, shall deliver to the Collateral Agent counterparts of a Mortgage, together with the Real Property Deliverables, with respect to each Material Real Property solely to the extent required to be delivered pursuant to, and 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 one hundred fifty (150) days after the Closing Date (or such longer period as the Collateral Agent agrees), the Borrower will and/or will cause each Loan Party (as applicable) to deliver, with respect to each Material Real Property owned by such Loan Party as of the Closing Date, (i) 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 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) the Real Property Deliverables; Notwithstanding anything to the contrary in this Section 5.10, any actions relating to Liens on real property are governed by this Section 5.10(2);
(3) Furnish to the Collateral Agent 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) legal name;
(b) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (cd), to the extent such information is necessary to enable the Collateral Agent to perfect or maintain the perfection and priority of its security interest in connection with the Impax ConversionCollateral of the relevant Loan Party. 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 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.
(34) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens).
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
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 the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
: (i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
; (iii) 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 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 (iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent 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) legal name;
; (b) type of organization;
; (c) location (determined as provided in UCC Section 9-307); or
or (d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
, (a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Amneal Pharmaceuticals, Inc.)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary 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, fixture filings, mortgages, vessel mortgages, deeds of covenants and other than an Excluded Subsidiary) documents and recordings of Liens in stock or any other registries), that may be required under any applicable law, or that the Collateral 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 Borrowers, and provide to the Collateral Agent from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) In the event that any requirement in set forth in Section 4.02(d) (without giving effect to the proviso thereto) has not been satisfied in full on or prior to the Closing Date, use commercially reasonable efforts to cause such requirement to be satisfied as promptly as practicable after the Closing Date and, in any event, cause all such requirements to be satisfied not later than 60 days following the Closing Date (or such later date as the Administrative Agent may agree as a result of delays despite diligent efforts).
(c) Within five Business Days after the Additional Subsidiary Guarantor Accession Trigger Date in respect of any Additional Subsidiary Guarantor, ensure that the Borrower Representative shall, and shall cause such Additional Subsidiary Guarantor to, execute and deliver an Additional Subsidiary Guarantor Accession Supplement to the Administrative Agent together with (i) the documents that such Additional Subsidiary Guarantor would have been required to deliver pursuant to Section 4.02(c), (m), (n) and (o), mutatis mutandis, had it been a Loan Party on the Closing Date, in each case certified or otherwise in the form required thereunder, (ii) if such Additional Subsidiary Guarantor offers to provide collateral security for the Obligations and/or the Equity Interests in such Additional Subsidiary Guarantor are offered to be pledged by any direct parent thereof as security for the Obligations, such additional deliverables substantially consistent with the Collateral and Guarantee Requirement (had such collateral been included as security on the Closing Date) as the Administrative Agent shall reasonably request, (iii) favorable written opinions from New York counsel and counsel in the jurisdiction in which such Additional Subsidiary Guarantor is formed, in each case reasonably satisfactory to the Administrative Agent and covering such matters relating to such Additional Subsidiary Guarantor, its Additional Subsidiary Guarantor Accession Supplement and its accession to the Loan Documents as the Administrative Agent shall reasonably request, (iv) to the extent available and not previously provided pursuant to Section 9.11 (if applicable), audited financial statements for the last three fiscal years of such Additional Subsidiary Guarantor and quarterly unaudited financial statements, mandatory statutory accounts and/or interim management accounts from the date of the most recent audited financial statements available through the date of delivery, and (v) copies of each consent authorization, acknowledgement, approval or similar item from or issued by any Governmental Authority or any other third party required in connection with such Additional Subsidiary Guarantor’s execution and delivery of its Additional Subsidiary Guarantor Accession Supplement and its performance thereunder and under the Loan Documents to which it will thereafter be a party.
(d) If any Subsidiary is formed or acquired after the Closing Date and such Subsidiary would constitute an Additional Subsidiary Guarantor but for the fact that such Subsidiary’s provision of a Guarantee of the Obligations would violate in any material respect such Subsidiary’s organizational documents or (b) an Unrestricted any material written agreement to which such Subsidiary is redesignated as a Restricted Subsidiaryparty, within 120 days after ensure that the date Borrowers use their best efforts to remove such Restricted restriction, including obtaining any necessary third party consents.
(e) As a condition precedent to the occurrence of any of the transactions permitted under paragraphs (j) and (k) of Section 6.05 or any other transaction effecting a change in the holder of any Equity Interests in a Subsidiary is formed or acquired or Borrower, ensure that each resulting new holder of any Equity Interests in such Unrestricted Subsidiary is redesignated as Borrower shall have executed and delivered to the Administrative Agent a Restricted Subsidiary, as applicable replacement Subsidiary Borrower Pledge Agreement (or other documentation satisfactory to the Administrative Agent evidencing such longer period as new holder’s pledge of all Equity Interests in such Subsidiary Borrower) prior to or not later than simultaneously with the Collateral Agent agrees)occurrence of the relevant transaction, the Borrower will or will cause such Restricted Subsidiary to:
together with (i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and extent requested by the Administrative Agent, duly executed on behalf favorable written opinions of counsel covering the enforceability of such Restricted Subsidiary;
replacement Subsidiary Borrower Pledge Agreement or other documentation and such other matters as the Administrative Agent may reasonably request and (ii) delivery to the extent required by and subject to the exceptions set forth in this Section 5.10 Collateral Agent of any certificates or the Security 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 instruments (if any) representing such Equity Interests.
(f) Provide not less than 60 days prior written notice of any Borrower’s intent to re-register any Mortgaged Vessel under the laws of a Permitted Flag Jurisdiction other than the jurisdiction in which such Mortgaged Vessel was registered on the Closing Date (or any subsequent re-registration permitted by this Agreement); and, together with stock powers or other instruments of transfer with respect thereto endorsed in blankas conditions precedent to any such re-registration, the relevant Borrower shall promptly grant to the Collateral Agent (a security interest in and deliver an acceptable vessel mortgage governed by the laws of the new Permitted Flag Jurisdiction together with any deed of covenants, mortgage supplement or other customary related supplementary documentation, which vessel mortgage together with any such supplementary documentation shall constitute a designated bailee thereof);
(iii) valid and enforceable perfected first priority Lien subject only to Permitted Liens. Subject to the extent terms of the Intercreditor Agreement, such vessel mortgage and supplementary documentation shall be duly registered, filed or recorded, as appropriate, in such manner and in such places as are required by law to establish, perfect, preserve and subject protect the Liens in favor of the Collateral Agent required to the exceptions set forth be granted pursuant to such vessel mortgage and supplementary documentation and all taxes, fees and other charges payable in this Section 5.10 or the Security Documents, connection therewith shall be paid by such Borrower in full. Such Borrower shall otherwise take such other actions and execute and/or deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by as the Collateral Agent shall require in its reasonable discretion to create confirm the Liens intended validity, perfection and priority of the Lien of any new vessel mortgage and any related supplementary documentation (including an opinion from local counsel acceptable to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral Agent, obtain all consents which opinion is in form and approvals required substance reasonably satisfactory to be obtained by it the Collateral Agent in connection with (A) the execution respect of such vessel mortgage 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 thereunderany related supplementary documentation).
(2i) Furnish to the Collateral Agent within 20 calendar days of such event (or such later date as the Collateral Agent may agree in its sole discretion) prompt written notice of any change (A) in any Loan Party’s:
’s or Material Subsidiary’s corporate or organization name, (aB) legal name;
in any Loan Party’s or Material Subsidiary’s identity or organizational structure or (bC) type of organization;
(c) location (determined as in any Loan Party’s or Material Subsidiary’s organizational identification number; provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 or otherwise other applicable law 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably 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 Parties with the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrower, and provide to priority intended under 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Guarantee Requirement and (ii) no non-United States law security promptly notify the Collateral Agent if any material portion of the Collateral is damaged or pledge agreements, non-United States law mortgages or deeds or non-United States intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be requireddestroyed.
Appears in 1 contract
Sources: Credit Agreement (Mariner, LLC)
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired after the Closing Date or (b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary (other than an Excluded Subsidiary), within 120 60120 days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable (or such longer period as the Collateral Agent agrees), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein 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) 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) 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document 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) Furnish to the Collateral Agent within 20 calendar days of ofafter 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) legal name;
(b) type of organization;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; except, in the case of each of the foregoing clauses (a) through (cd), to the extent such information is necessary to enable the Collateral Agent to perfect or maintain the perfection and priority of its security interest in connection with the Impax ConversionCollateral of the relevant Loan Party. 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 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.
(3) 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) and (2) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens).
(4) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, set forth in the Collateral Agreement or other applicable Security Document;
(b) neither 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 a Responsible Officer of the Borrower and the Administrative Agent (or with respect to matters relating primarily to the ABL Term Priority Collateral, the Borrower and the ABL Term Agent); and
(c) (i) no actions will be required (A) outside of the United States 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 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.
(5) The Borrower shall be required to pledge its equity investment in Amneal Complex Products Research LLC solely to the extent that such equity investment is pledged under the Term Loan Documents.
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 the Borrower 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 120 days 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 applicable, notify the Administrative Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower Holdings will or will cause such Restricted Subsidiary to: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 Collateral AgreementGuaranty, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the 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 this Section 5.10 or the applicable Security DocumentsDocuments (including, with respect to the U.S. Loan Parties, 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 (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 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.
(iiiiv) 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 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
(ivv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish 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 Collateral Agent United States, then, in each case, within 20 calendar 45 days of such event (or such later date longer period as the Collateral 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 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 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 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 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) legal Corporate, company or organization name;
(b) type organizational structure (including jurisdiction of organizationincorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) jurisdiction of organization; exceptorganizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) U.S. Excluded Assets or U.S. Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the U.S. Collateral Agreement and (ii) any assets or other applicable exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security DocumentDocuments;
(b) neither the Borrower 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 a Responsible Officer of the Borrower Holdings 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 States or any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Specified Foreign Jurisdiction 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 under by the laws of any non-jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any Intellectual Property Rights filings or searches in any jurisdiction or non-other than the United States searches 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 the Holdings or any Borrower is formed or acquired after the Closing Date Date, or (b) if a Subsidiary ceases to be an Unrestricted Subsidiary is redesignated as a Restricted Excluded Subsidiary, within 120 days as applicable, promptly after the date such Restricted Subsidiary is formed or acquired or ceases to be an Excluded Subsidiary, as applicable, notify the Administrative Agent thereof and, if such Unrestricted Subsidiary is redesignated as a Restricted organized under the laws of the United States or Canada, then within sixty (60) days after the date such Subsidiary is formed or acquired or ceased to be an Excluded Subsidiary, as applicable (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), Holdings and the Borrower Borrowers will or will cause such Restricted Subsidiary to:
(ia) subject to any relevant guarantee limitation, deliver a joinder to the Collateral AgreementGuaranty, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary 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 U.S. Collateral Agreement substantially in the form specified therein, and with respect to any 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 Subsidiary;
(iiiii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the applicable Security DocumentsDocuments (including, with respect to the U.S. Loan Parties, 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 (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests); provided, together with stock powers that notwithstanding the foregoing or other instruments of transfer with respect thereto endorsed in blank, any Loan Document to the Collateral Agent (contrary, no actions will be required under the laws of any jurisdiction other than the United States or a designated bailee thereof);Canada in order to create or perfect any security interest in any Equity Interests except in respect of the U.K. Security Documents.
(iiiiv) 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 UCC or equivalent financing statements in 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
(ivv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) [Reserved].
(3) Furnish to the Collateral Agent within 20 calendar fifteen (15) days of such event (or such later date as the Collateral Agent may agree in its sole discretion) prior written notice of any change in any Loan Party’s’s or Limited Recourse Pledgor:
(a) legal Corporate, company or organization name;
(b) type organizational structure (including jurisdiction of organizationincorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) jurisdiction of organization; exceptorganizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) U.S. Excluded Assets or U.S. Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the 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 (iii) any assets or other applicable exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security DocumentDocuments;
(b) neither the Borrower 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 a Responsible Officer of the Borrower Holdings 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) except in respect of the U.K. Security Documents, no actions will be required (A) outside of the United States or Canada 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Canada 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 under by the laws of any non-jurisdiction other than the United States or Canada, or any Intellectual Property Rights filings or searches in any jurisdiction or non-other than the United States searches or Canada will be required.
Appears in 1 contract
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 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 SubsidiarySubsidiary that does not constitute an Excluded Subsidiary 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 120 days 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 of the applicable event described above (or such longer period as the Collateral Administrative Agent agreesmay agree in its reasonable discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to each of the Guaranty and the Collateral AgreementAgreement (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 Agreed Security Principles), substantially in the form specified therein (or in such other form as is acceptable to such Restricted Subsidiary, agreed between the Borrower and the Administrative Agent), duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Administrative Agent (or a designated bailee thereof);
(iii) 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 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;
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish Subject in each case to the Collateral Agent Agreed Security Principles, if any Loan Party (a) acquires a Real Property 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(2)(i) hereof and owns a Material Real Property, then, in each case, within 20 calendar 90 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) written after such acquisition or entry of a joinder (as applicable), in each case other than with respect to any Material Real Property that constitutes an Excluded Asset:
(a) notify the Administrative Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Material Real Property (as applicable) to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder;
(c) (A) obtain fully paid American Land Title Association Lender’s title insurance policies or other equivalent title insurance policies, in each case in form and substance reasonably satisfactory to the Administrative Agent, with endorsements (including zoning endorsements where available) and in an amount not 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 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 Administrative Agent and available in the related jurisdiction and (2) shall provide for affirmative insurance and such reinsurance as the 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 Administrative Agent; (B) evidence reasonably satisfactory to the 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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real 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 Administrative Agent;
(d) obtain (i) American Land Title Association (“ALTA”) / National Society of Professional Surveyors, 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 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the issuer of the Title Policies in a manner reasonably satisfactory to the Administrative Agent or (ii) previously obtained ALTA surveys and affidavits of “no-change” with respect to each such survey, such surveys and affidavits to be sufficient to issue each Title Policy to the Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) deliver to the Administrative Agent, a completed “life of the loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property located in the United States (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party) and if any improvements on any such Mortgaged Property are located within a Flood Zone, evidence of such flood insurance to the extent required under Section 5.02(1);
(f) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust (1) enforceability opinions of local counsel for the Loan Parties in the states in which such acquired 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 organized or incorporated; and
(g) take, or cause the applicable Loan Party to take, such actions as shall be necessary or reasonably requested by the 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.
(4) Within 30 days (or such longer period as the Administrative Agent may agree in its reasonable discretion) of the applicable change, furnish notice to the Administrative Agent of any change in any Loan Party’s:
(a) legal corporate or organization name (including any French form of name, English/French form of name or French/English form of name);
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307307 or the PPSA); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. 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 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).
(35) 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) and (23) and that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably 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 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 Borrower, and provide to the Collateral Administrative 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 Documents (subject to Permitted Liens)the extent required hereby.
(46) 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 Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements expressly set forth in the Collateral Agreement or any other applicable Security Document;
(b) neither 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 a Responsible Officer of the Borrower and in its reasonably judgement in consultation with the Administrative Agent 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 matters relating primarily 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 the ABL Priority Collateral, the Borrower and the ABL Agent)certificates of title;
(iii) commercial tort claims; and
(civ) 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 (A) outside of the United States 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign 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 under the laws of any non-United States jurisdiction or non-United States searches will be required.p
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of 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), within 120 days 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 applicable, notify the Collateral Agent thereof and, within 20 Business 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 Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security DocumentsCollateral 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) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) 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 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
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish If any Loan Party (a) acquires fee simple title in Real Property after the Closing Date or (b) enters a joinder pursuant to the Collateral Agent Section 5.10(1)(i) hereof and owns fee simple title in Real Property, then, in each case, within 20 calendar 60 days of such event (or such later date longer period as the Collateral Administrative Agent may agree in its sole discretion) after such acquisition or entry of a joinder (as applicable):
(a) notify the Collateral Agent thereof of such acquired or owned Real Property (as applicable);
(b) cause any such acquired or owned Real Property (as applicable) that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $3.0 million or more to be subjected to a Mortgage securing the Obligations unless such Real Property shall be subject to a Sale and Lease-Back Transaction permitted by Section 6.03 hereunder or is already mortgaged to a third party to the extent permitted by Section 6.02;
(c) (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 and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages in the applicable real property records; and (C) a 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”);
(d) obtain (i) American Land Title Association/American Congress on Surveying and Mapping surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent or (ii) previously obtained 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 Administrative Agent providing all reasonably required survey coverage and survey endorsements;
(e) deliver to the Collateral Agent: (A) a completed Flood Certificate with respect to each Mortgaged 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; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if any Flood Certificate states that a Mortgaged Property is located in a Flood Zone, 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 (2) 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 all applicable regulations of the Board of Governors;
(f) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including the insurance required by the terms of any mortgage or deed of trust;
(g) for each Mortgage delivered pursuant to clause (b), obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) 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.
(3) Furnish to the Collateral Agent five Business Days prior written notice of any change in any Loan Party’s:
(a) legal corporate or organization name;
(b) type of organizationorganizational structure;
(c) location (determined as provided in UCC Section 9-307); or
(d) jurisdiction of organization; exceptorganizational identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of the foregoing clauses (a) through (c)applicable jurisdiction, in connection with the Impax ConversionFederal Taxpayer Identification Number. 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 Borrower, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the Collateral Agreement or other applicable Security DocumentAgreement;
(b) neither 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 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 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 non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, and (ii) no non-United States foreign law security or pledge agreements, non-United States foreign law mortgages or deeds or non-United States foreign intellectual property filings or other agreements or documents governed under the laws of any non-United States jurisdiction or non-United States searches will be required.
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) a Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower 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 120 days 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 applicable, notify the Administrative Agent thereof and, within 60 days after the date such Restricted Subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent agreesmay agree in its sole discretion), the Borrower Holdings will or will cause such Restricted Subsidiary to: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 Collateral AgreementGuaranty, substantially in the form specified therein or in such other form as is acceptable to such Restricted Subsidiary, the Borrower and the Administrative Agenttherein, duly executed on behalf of such Restricted Subsidiary;
(ii) with respect a Domestic Subsidiary, deliver a joinder to the 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 this Section 5.10 or the applicable Security DocumentsDocuments (including, with respect to the U.S. Loan Parties, 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 (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 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.
(iiiiv) 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 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
(ivv) except as otherwise contemplated by this Section 5.10 or any Security Document or as otherwise agreed by the Collateral AgentDocument, 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) Furnish 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 Collateral Agent United States, then, in each case, within 20 calendar 45 days of such event (or such later date longer period as the Collateral 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 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 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 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 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 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) legal Corporate, company or organization name;
(b) type organizational structure (including jurisdiction of organizationincorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(d) jurisdiction of organization; exceptorganizational or company identification number (or equivalent) or, solely if required for perfecting a security interest in the case of each of applicable jurisdiction, Federal Taxpayer Identification Number. Holdings and the foregoing clauses (a) through (c), in connection with the Impax Conversion. The Borrower 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 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.
(34) 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) and through (23) and that may be required under any applicable law, or that the Collateral Agent may reasonably request in writing to the Borrower 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 BorrowerBorrowers, 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 Documents (subject to Permitted Liens)Documents.
(45) Notwithstanding anything to the contrary,:
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any (i) U.S. Excluded Assets or U.S. Excluded Equity Interests or any exclusions and carve-outs from the security or perfection requirements, as applicable, requirements set forth in the U.S. Collateral Agreement and (ii) any assets or other applicable exclusions and carve-outs from grant of guarantees and security and perfection requirements set forth in the Security DocumentDocuments;
(b) neither the Borrower 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 a Responsible Officer of the Borrower Holdings 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 States or any non-United States jurisdiction or (C) under the laws of any non-United States jurisdiction to create any security interests or to perfect or make enforceable any security interests, Specified Foreign Jurisdiction 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 under by the laws of any non-jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any Intellectual Property Rights filings or searches in any jurisdiction or non-other than the United States searches 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