Further Assurances; Additional Security. (a) 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 and other documents and recordings of Liens in stock 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 Loan Parties 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) If any asset (including any Real Property (other than Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 million is acquired by Holdings (prior to a Qualified IPO), the Borrowers or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents) will (i) notify the Collateral Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in (a) of this Section, all at the expense of the Loan Parties, subject to paragraph (g) below. (c) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests and mortgages in such Real Property of the Borrowers or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $3.0 million pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on the Closing Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional 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 Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrowers shall deliver, or cause the applicable Subsidiary Loan Party to deliver, to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey. (d) If any additional direct or indirect Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within five Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below. (e) If any additional Foreign Subsidiary of Holdings is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below. (i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure or (C) in any Loan Party’s organizational identification number; provided, that the Borrowers shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed. (g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to (i) any Real Property held by the Borrowers or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $3.0 million, (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, or (v) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iv) and (v) above. (h) Upon the reasonable request (in each case, taking into account the relative costs (to the Loan Parties) and benefits (to the Secured Parties)) of the Collateral Agent or the Required Lenders, take, or cause to be taken, such action as may be reasonably requested (including, without limitation (i) subject to the above-mentioned cost-benefit analysis, the execution and delivery of pledge or security agreements governed by applicable local law and (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings will, and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h). (i) In the event that any requirement set forth in Section 4.02(d) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date (or such later date as the Administrative Agent may agree because of delays despite diligent efforts).
Appears in 1 contract
Sources: Credit Agreement (Rexnord Corp)
Further Assurances; Additional Security. Subject to the ABL Intercreditor Agreement and any other Permitted Senior Intercreditor Agreement and subject to Section 5.13:
(a) 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 and other documents and recordings of Liens in stock registriesdocuments), 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 Loan Parties 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) If any asset (including any owned Real Property (other than owned Real Property covered by paragraph (cSection 5.10(c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 million is acquired by Holdings (prior to a Qualified IPO)Holdings, the Borrowers Borrower or any other Loan Party after the Closing Date or is owned by an entity at the time it becomes a First Tier Covenant Party or Subsidiary Loan Party Party, (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof thereof, and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g5.10(f) or the Security Documents) will ), (i) notify the Collateral Agent Agents thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral the Administrative Agent an updated Schedule 1.01B 1.01C reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in
(a) of this Sectionin Section 5.10(a), all at the expense of the Loan Parties, subject to paragraph (gSection 5.10(f) below.
(ci) Grant and cause each of the Subsidiary other Loan Parties to grant to the Collateral Agent a security interests interest in and mortgages in such mortgage on any Material Real Property of the Borrowers Borrower or any such Subsidiary other Loan Parties that is not a Mortgaged Property as are not covered by the original Mortgages, to the extent acquired after of the Closing Date and having (including any Real Property owned on the Closing Date which becomes a value at Material Real Property), within 90 days after such acquisition or such Real Property becoming a Material Real Property, as applicable (or such later date as the time of acquisition Administrative Agent may agree in excess of $3.0 million its sole discretion), pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on or within 120 days of the Closing Date (or such longer period as the Administrative Agent (in consultation with the Lenders) shall agree) or in such other form as is reasonably satisfactory to the Collateral Administrative Agent (in consultation with the Lenders) (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of perfection thereof, (ii) record or file, and cause each such Subsidiary to record or file, the Additional 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 Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, and (iii) deliver to the Administrative Agent an updated Schedule 1.01C reflecting such additional Mortgaged Properties, in each case subject to paragraph (gSection 5.10(f) below. Unless otherwise waived by the Collateral AgentAgent (in consultation with the Lenders), with respect to each such Additional Mortgage, the Borrowers Borrower shall deliver, or cause the applicable Subsidiary Loan Party to deliver, deliver to the Collateral Agent contemporaneously therewith a title insurance policy(or comply with, contemporaneously therewith) the other requirements set forth in clauses (g), (h), (i), (j) and a survey(k) of the definition of “Collateral and Guarantee Requirement.”
(d) If any First Tier Covenant Party or additional direct or indirect Wholly-Owned Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers Borrowerany First Tier Covenant Party is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such First Tier Covenant Party or Subsidiary is a Domestic Subsidiary Loan Partythat is not a FSHCO (or, following the consummation of the QLICI Put / Call Option, if QLICI Subsidiary does not merge with and into Holdings or dissolve as provided in Section 6.05(b)), within five 10 Business Days after the date such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) is formed or acquired, notify the Collateral Agent Agents and the Lenders thereof and, within 20 Business Days after the date such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) is formed or acquired or such longer period as the Collateral Administrative Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) and with respect to any Equity Interest in or Indebtedness of such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) owned by or on behalf of any Loan Party, subject to paragraph (gSection 5.10(f) below.
(e) If any additional Foreign Subsidiary of Holdings is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary; provide, within five Business Days after the date such Foreign Subsidiary is formed or acquiredhowever, notify the Collateral Agent and the Lenders thereof andthat, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.any
(i) Furnish to the Collateral Agent prompt at least 10 days prior written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure structure, or (C) in any Loan Party’s organizational identification number; provided, provided that none of the Borrowers Loan Parties shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(gf) The Collateral and Guarantee Requirement Requirement, and the other provisions of this Section 5.10 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) any Real Property held by the Borrowers Borrower or any of their Subsidiaries as a lessee under a lease or the Subsidiaries,any Loan Party that has an individual fair market value is not, in an amount less than $3.0 millionthe reasonable determination of the Collateral Agent and the Required Lenders, reasonably material to the business operations of the Borrower and the Loan Parties, (ii) any vehiclemotor vehicles and other assets subject to certificates of title (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing an initial Uniform Commercial Code financing statement (UCC-1)), (iii) cashpledges and security interests to the extent prohibited by applicable law, deposit accounts rule, regulation or contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and securities accountsexcept to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) Margin Stock and any Equity Interests acquired after the Closing Date (of any persons other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and Wholly-Owned Subsidiaries to the extent thatnot permitted by the terms of such person’s articles or certificate of incorporation, and for bylaws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents, in each case, so long as (A) doing so would violate applicable law or a such contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time was not entered into in contemplation of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiarythereof, or (v) any assets acquired after the Closing Dateassets, to the extent thata security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary LoanCovenant Party) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Applicable Collateral Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, (ix) solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America “intent-to-use” trademark applications for which a verified statement of use or an amendment to allege use has not been filed with and accepted by the United States Patent and Trademark Office, (x) any Equity Interests of Gulf Island Pond Oxygenation Project to the extent not permitted by the terms of such Person’s articles or certificate of incorporation, bylaws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents and (xi) any Equity Interests of Verso Quinnesec REP LLC so long as, taking as Verso Quinnesec LLC is not permitted to grant a security interest in such actions would violate an enforceable contractual obligation binding on such assets that existed at Equity Interests pursuant to the time terms of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets QLICI Facility; provided that (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(iA) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers Borrowereach First Tier Covenant Party shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses clause (iii) above, and (B) the foregoing exclusions of clause (iii), (iv), (vi), (viii) and or (vxi) above.
above shall in no way be construed (h1) Upon the reasonable request (in each case, taking into account the relative costs (to apply to the Loan Partiesextent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) and benefits (to apply to the Secured Parties)extent that any consent or waiver has been obtained that would permit the Collateral Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Collateral Agent Agent’s any other Secured Party’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the Required Lenderstaking of any other actions to perfect by control any security interest in any deposit accounts, takesecurities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or cause to be takenany other Loan Document, such action as may be reasonably requested (including, without limitation (i) subject the Administrative Agent may grant extensions of time for the requirements of creating or perfecting security interests in or the obtaining of title insurance, legal opinions, appraisals, flood insurance and surveys with respect to particular assets (including extensions beyond the above-mentioned cost-benefit analysisClosing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the execution and delivery Borrower, that perfection or obtaining of pledge such items cannot be accomplished without undue effort or security agreements governed expense by applicable local law and the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) Liens required to be granted from time to time pursuant to this Agreement and the filing of financing statements) Security Documents shall be subject to exceptions and limitations set forth in order to perfect the Security Documents, and (or maintain the perfection ofiii) the security interests Collateral Agent (or take any analogous actions under in consultation with the applicable provisions of local law in order to protect Lenders) and the Borrower may make such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case modifications to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings willMortgages, and will cause execute and/or consent to such easements, covenants, rights of way or similar instruments (and the other Loan Parties that are Subsidiaries Collateral Agent (in consultation with the Lenders) may agree to subordinate the lien of Holdings toany Mortgage to any such easement, deliver covenant, right of way or similar instrument of record or may agree to recognize any tenant pursuant to an agreement in a form and substance reasonably acceptable to the Collateral Agent such opinions of counsel and the Required Lenders), as are reasonable or necessary and otherwise permitted by this Agreement and the other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h)Documents.
(i) In the event that any requirement set forth in Section 4.02(d) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date (or such later date as the Administrative Agent may agree because of delays despite diligent efforts).
Appears in 1 contract
Further Assurances; Additional Security. (a) 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 and other documents and recordings of Liens in stock 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 Loan Parties 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) If any asset (including any Real Property (other than Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 5 million is acquired by Holdings (prior to a Qualified IPO), the Borrowers Company or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents) will (i) notify the Collateral Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B 1.01(c) reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, 112 and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in
in paragraph (a) of this Section, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) Grant Promptly notify the Collateral Agent of the acquisition of and grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests and mortgages in such Real Property of the Borrowers Company or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $3.0 5 million pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on the Closing Date or in such other form as is reasonably satisfactory to the Collateral Administrative Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional 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 Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrowers Company shall deliver, or cause the applicable Subsidiary Loan Party to deliver, deliver to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(d) If any additional direct or indirect Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers Company is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within five Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(e) If any additional Foreign Subsidiary of Holdings the Company is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure or (C) in any Loan Party’s organizational identification number; provided, that the Borrowers shall not effect or permit any such change unless all filings have been made, or will have been made within any statutory period, under the Uniform Commercial Code or 113 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to (i) any Real Property held by the Borrowers or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $3.0 millionlease, (ii) any vehicle, (iii) except as required pursuant to Section 5.14, cash, deposit account and security accounts (provided that this clause (iii) shall not affect the Collateral Agent’s right to claim a security interest in proceeds of Accounts and securities accountsInventory), (iv) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Borrowers Company or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) such Equity Interests constitute less than 100% of all applicable Equity Interests of such person and the person holding the remainder of such Equity Interests are not Affiliates, (B) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (BC) with respect to such contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, or (v) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien)) or (vi) those assets as to which the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers Company shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iv) and (v) above.
(h) Upon the reasonable request (in each case, taking into account the relative costs (to the Loan Parties) and benefits (to the Secured Parties)) of the Collateral Agent or the Required Lenders, take, or cause to be taken, such action as may be reasonably requested (including, without limitation (i) subject to the above-mentioned cost-benefit analysis, the execution and delivery of pledge or security agreements governed by applicable local law and (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings will, and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) In the event that any requirement set forth in Section 4.02(d) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date (or such later date as the Administrative Agent may agree because of delays despite diligent efforts).
Appears in 1 contract
Further Assurances; Additional Security. Subject to the Intercreditor Agreement, and subject to Section 5.13:
(a) 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 and other documents and recordings of Liens in stock registriesdocuments), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) If any asset (including any owned Real Property (other than owned Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 million is acquired by Holdings (prior to a Qualified IPO)Holdings, the Borrowers Borrower or any other Loan Party after the Closing Date or is owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof thereof, and (y) assets that are not required to become subject to Liens in favor of the Collateral Administrative Agent pursuant to Section 5.10(g5.10(f) or the Security Documents) will ), (i) notify the Collateral Administrative Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral the Administrative Agent an updated Schedule 1.01B 1.01C reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in
in paragraph (a) of this Section, all at the expense of the Loan Parties, subject to paragraph (gf) below.
(ci) Grant and cause each of the Subsidiary other Loan Parties to grant to the Collateral Administrative Agent a security interests interest in and mortgages in such mortgage on any Material Real Property of the Borrowers Borrower or any such Subsidiary other Loan Parties that is not a Mortgaged Property as are not covered by the original Mortgages, to the extent acquired after of the Closing Date and having (including any Real Property owned on the Closing Date which becomes a value at Material Real Property), within 90 days after such acquisition or such Real Property becoming a Material Real Property, as applicable (or such later date as the time of acquisition Administrative Agent may agree in excess of $3.0 million its sole discretion), pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Administrative Agent on or within 120 days of the Closing Date (or such longer period as the Administrative Agent shall agree) or in such other form as is reasonably satisfactory to the Collateral Administrative Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of perfection thereof, (ii) record or file, and cause each such Subsidiary to record or file, the Additional 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 Administrative Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, and (iii) deliver to the Administrative Agent an updated Schedule 1.01C reflecting such additional Mortgaged Properties, in each case subject to paragraph (gf) below. Unless otherwise waived by the Collateral Agent, with With respect to each such Additional Mortgage, the Borrowers Borrower shall deliver, or cause the applicable Subsidiary Loan Party to deliver, deliver to the Collateral Administrative Agent contemporaneously therewith a title insurance policy, the other requirements set forth in paragraph (h) (unless otherwise waived by the Administrative Agent in its sole discretion) and a survey(i) of the Collateral and Guarantee Requirement.
(d) If any additional direct or indirect Wholly-Owned Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Domestic Subsidiary Loan Partythat is not an Unrestricted Subsidiary or a FSHCO (other than, at the Borrower’s option, Immaterial Subsidiaries), within five ten Business Days after the date such Wholly-Owned Subsidiary is formed or acquired, notify the Collateral Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly-Owned Subsidiary is formed or acquired or such longer period as the Collateral Administrative Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Wholly-Owned Subsidiary and with respect to any Equity Interest in or Indebtedness of such Wholly-Owned Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(e) If any additional Foreign Subsidiary of Holdings is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (gf) below.
(i) Furnish to the Collateral Administrative Agent prompt at least ten (10) days prior written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure structure, or (C) in any Loan Party’s organizational identification number; provided, provided that none of the Borrowers Loan Parties shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(gf) The Collateral and Guarantee Requirement Requirement, and the other provisions of this Section 5.10 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”):
(i) any Real Property held by the Borrowers Borrower or any of their the Subsidiaries as a lessee under a lease or that has an individual fair market value (as determined by the Borrower in good faith) in an amount less than $3.0 million, unless such Real Property is subject to a mortgage, trust deed, deed of trust, deed to secure debt, assignment of leases and rents or other security document in favor of the Term Loan Agent or any subagent thereof to secure the Term Obligations or other obligations under the Term Loan Documents, (ii) any vehiclemotor vehicles and other assets subject to certificates of title (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing an initial Uniform Commercial Code financing statement (UCC-1)), (iii) cashpledges and security interests to the extent prohibited by applicable law, deposit accounts rule, regulation or contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and securities accountsexcept to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) Margin Stock and any Equity Interests acquired after the Closing Date (of any persons other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and Wholly-Owned Subsidiaries to the extent thatnot permitted by the terms of such person’s articles or certificate of incorporation, and for by-laws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents, in each case, so long as (A) doing so would violate applicable law or a such contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time was not entered into in contemplation of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiarythereof, or (v) any assets acquired after the Closing Dateassets, to the extent thata security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary Loan Party) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Applicable Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, (ix) solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, pending United States of America “intent-to-use” trademark applications for which a verified statement of use or an amendment to allege use has not been filed with and accepted by the United States Patent and Trademark Office, (x) any Equity Interests of Gulf Island Pond Oxygenation Project to the extent not permitted by the terms of such person’s articles or certificate of incorporation, by laws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents and (xi) any Equity Interests of Verso Quinnesec REP LLC so long as, taking as Verso Quinnesec LLC is not permitted to grant a security interest in such actions would violate an enforceable contractual obligation binding on such assets that existed at Equity Interests pursuant to the time terms of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets QLICI Facility; provided that (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(iA) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Administrative Agent, Holdings and the Borrowers Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses clause (iii) above, and (B) the foregoing exclusions of clause (iii), (iv), (vi), (viii) and or (vxi) above.
above shall in no way be construed (h1) Upon the reasonable request (in each case, taking into account the relative costs (to apply to the Loan Partiesextent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) and benefits (to apply to the Secured Parties)extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral Agent and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the Required Lenderstaking of any other actions to perfect by control any security interest in any deposit accounts, takesecurities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or cause to be takenany other Loan Document, such action as may be reasonably requested (including, without limitation (i) subject the Administrative Agent may grant extensions of time for the requirements of creating or perfecting security interests in or the obtaining of title insurance, legal opinions, appraisals, flood insurance and surveys with respect to particular assets (including extensions beyond the above-mentioned cost-benefit analysisClosing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the execution and delivery Borrower, that perfection or obtaining of pledge such items cannot be accomplished without undue effort or security agreements governed expense by applicable local law and the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted Liens required to be taken under granted from time to time pursuant to this Agreement and the laws of the applicable jurisdictions. Furthermore, Holdings will, Security Documents shall be subject to exceptions and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) In the event that any requirement limitations set forth in Section 4.02(dthe Security Documents and (iii) (without giving effect the Administrative Agent and the Borrower may make such modifications to the proviso thereof) has not been satisfied in full on Mortgages, and execute and/or consent to such easements, covenants, rights of way or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date similar instruments (or such later date as and the Administrative Agent may agree because to subordinate the lien of delays despite diligent effortsany Mortgage to any such easement, covenant, right of way or similar instrument of record or may agree to recognize any tenant pursuant to an agreement in a form and substance reasonably acceptable to the Administrative Agent), as are reasonable or necessary and otherwise permitted by this Agreement and the other Loan Documents.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Verso Corp)
Further Assurances; Additional Security. (a) 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 and other documents and recordings of Liens in stock 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 Loan Parties 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) If any asset (including any Real Property (other than Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 million is acquired by Holdings (prior to a Qualified IPO), the Borrowers or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents) will (i) notify the Collateral Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in
in paragraph (a) of this Section, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests and mortgages in such Real Property of the Borrowers or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $3.0 million pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on the Closing Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional 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 Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrowers shall deliver, or cause the applicable Subsidiary Loan Party to deliver, to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(d) If any additional direct or indirect Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within five Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(e) If any additional Foreign Subsidiary of Holdings is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure or (C) in any Loan Party’s organizational identification number; provided, that the Borrowers shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to (i) any Real Property held by the Borrowers or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $3.0 million, (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, or (v) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) or Section 6.01(r) (if of the type permitted by Section 6.01(i)) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iv) and (v) above.
(h) Upon the reasonable request (in each case, taking into account the relative costs (to the Loan Parties) and benefits (to the Secured Parties)) of the Collateral Agent or the Required Lenders, take, or cause to be taken, such action as may be reasonably requested (including, without limitation (i) subject to the above-mentioned cost-benefit analysis, the execution and delivery of pledge or security agreements governed by applicable local law and (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings will, and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) In the event that any requirement set forth in Section 4.02(d) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date (or such later date as the Administrative Agent may agree because of delays despite diligent efforts).
Appears in 1 contract
Sources: Credit Agreement (RBS Global Inc)
Further Assurances; Additional Security. (a) 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 and other documents and recordings of Liens in stock 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 Loan Parties 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) If any asset (including any Real Property (other than Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $3.0 5.0 million is acquired by Holdings (prior to a Qualified IPO), the Borrowers Borrower or any other Loan Party after the Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents) will (i) notify the Collateral Agent thereof, and (ii) if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations (subject, as the case may be, to Permitted Liens) and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, (subject, as the case may be, to Permitted Liens), including actions described in
in paragraph (a) of this SectionSection 5.10, all at the expense of the Loan Parties, subject to paragraph (g) below.
(c) Grant Promptly notify the Collateral Agent of the acquisition of, and grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests and mortgages in in, such Real Property of the Borrowers Borrower or any such Subsidiary Loan Parties as are not covered by the original Mortgages, to the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $3.0 million 5.0 million, and, to the extent requested by the Collateral Agent, pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Agent on the Closing Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of perfection thereof, record or file, and cause each such Subsidiary to record or file, the Additional 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 Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrowers Borrower shall deliver, or cause the applicable Subsidiary Loan Party to deliver, deliver to the Collateral Agent contemporaneously therewith a title insurance policy, policy and a surveycopy of any survey obtained by the Borrower with respect to each Real Property subject to an Additional Mortgage.
(d) If any additional direct or indirect Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) ), and if such Subsidiary is a Subsidiary Loan Party, within five ten Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(e) If any additional Foreign Subsidiary of Holdings the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) ), and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.
(i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure or (C) in any Loan Party’s organizational identification number; provided, that the Borrowers Borrower shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(g) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 need not be satisfied with respect to (i) any Real Property held by the Borrowers Borrower or any of their its Subsidiaries as a lessee under a lease or any Real Property owned in fee that has an individual fair market value (as determined in good faith by the Borrower) in an amount less than $3.0 5.0 million, (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests issued or acquired after the Closing Date (other than Equity Interests in the Borrowers Borrower or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) such Equity Interests constitute less than 100% of all applicable Equity Interests of such person and the person holding the remainder of such Equity Interests are not Affiliates, (B) doing so would violate applicable law or a contractual obligation binding on or with respect to such Equity Interests or such Subsidiary and (BC) with respect to such contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on or with respect to such Equity Interests or such Subsidiary in contemplation of or in connection with the acquisition of such Equity Interests or Subsidiary, or (v) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien)) or (vi) those assets as to which the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iv) and (v) above.
(h) Upon the reasonable request (in each case, taking into account the relative costs (to the Loan Parties) and benefits (to the Secured Parties)) of the Collateral Agent or the Required Lenders, take, or cause to be taken, such action as may be reasonably requested (including, without limitation (i) subject to the above-mentioned cost-benefit analysis, the execution and delivery of pledge or security agreements governed by applicable local law and (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings will, and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) In the event that any requirement set forth in Section 4.02(d) (without giving effect to the proviso thereof) has not been satisfied in full on or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date (or such later date as the Administrative Agent may agree because of delays despite diligent efforts).
Appears in 1 contract
Sources: Credit Agreement (Noranda Aluminum Acquisition CORP)
Further Assurances; Additional Security. Subject to the Intercreditor Agreement, and subject to Section 5.13:
(a) 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 and other documents and recordings of Liens in stock registriesdocuments), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) If any asset (including any owned Real Property (other than owned Real Property covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value in an amount greater than $3.0 million is acquired by Holdings (prior to a Qualified IPO)Holdings, the Borrowers Borrower or any other Loan Party after the Closing Date or is owned by an entity at the time it becomes a First Tier Covenant Party or Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof thereof, and (y) assets that are not required to become subject to Liens in favor of the Collateral Administrative Agent pursuant to Section 5.10(g5.10(f) or the Security Documents) will ), (i) notify the Collateral Administrative Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral the Administrative Agent an updated Schedule 1.01B 1.01C reflecting the addition of such asset, and (iii) cause such asset to be subjected to a Lien securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in
in paragraph (a) of this Section, all at the expense of the Loan Parties, subject to paragraph (gf) below.
(ci) Grant and cause each of the Subsidiary other Loan Parties to grant to the Collateral Administrative Agent a security interests interest in and mortgages in such mortgage on any Material Real Property of the Borrowers Borrower or any such Subsidiary other Loan Parties that is not a Mortgaged Property as are not covered by the original Mortgages, to the extent acquired after of the Closing Date and having (including any Real Property owned on the Closing Date which becomes a value at Material Real Property), within 90 days after such acquisition or such Real Property becoming a Material Real Property, as applicable (or such later date as the time of acquisition Administrative Agent may agree in excess of $3.0 million its sole discretion), pursuant to documentation substantially in the form of the Mortgages delivered to the Collateral Administrative Agent on or within 120 days of the Closing Date (or such longer period as the Administrative Agent shall agree) or in such other form as is reasonably satisfactory to the Collateral Administrative Agent (each, an “Additional Mortgage”) and constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of perfection thereof, (ii) record or file, and cause each such Subsidiary to record or file, the Additional 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 Administrative Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges payable in connection therewith, and (iii) deliver to the Administrative Agent an updated Schedule 1.01C reflecting such additional Mortgaged Properties, in each case subject to paragraph (gf) below. Unless otherwise waived by the Collateral Agent, with With respect to each such Additional Mortgage, the Borrowers Borrower shall deliver, or cause the applicable Subsidiary Loan Party to deliver, deliver to the Collateral Administrative Agent contemporaneously therewith a title insurance policy, the other requirements set forth in paragraph (h) (unless otherwise waived by the Administrative Agent in its sole discretion) and a survey(i) of the Collateral and Guarantee Requirement.
(d) If any First Tier Covenant Party or additional direct or indirect Wholly-Owned Subsidiary of Holdings (prior to a Qualified IPO) or the Borrowers Borrowerany First Tier Covenant Party is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such First Tier Covenant Party or Subsidiary is a Domestic Subsidiary Loan Partythat is not an Unrestricted Subsidiary or a FSHCO (or, following the consummation of the QLICI Put / Call Option, if QLICI Subsidiary does not merge with and into Holdings or dissolve as provided in Section 6.05(b)) (other than, at the Borrower’s option, Immaterial Subsidiaries), within five ten Business Days after the date such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) is formed or acquired, notify the Collateral Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) is formed or acquired or such longer period as the Collateral Administrative Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) and with respect to any Equity Interest in or Indebtedness of such First Tier Covenant Party or Wholly-Owned Subsidiary (or QLICI Subsidiary, if applicable) owned by or on behalf of any Loan Party, subject to paragraph (gf) below.
(e) If any additional Foreign Subsidiary of Holdings is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary. ; provided, within five Business Days after the date such Foreign Subsidiary is formed or acquiredhowever, notify the Collateral Agent and the Lenders thereof andthat, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest subsidiary formed in connection with the Permitted Restructuring Transactions, so long as such Foreign First Tier Covenant Party or Subsidiary owned by has no assets, such First Tier Covenant Party or on behalf of any Loan Party, Subsidiary shall not be subject to paragraph (gthe requirements under this Section 5.10(d) belowbut shall comply with Section 5.14.
(i) Furnish to the Collateral Administrative Agent prompt at least ten (10) days prior written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure structure, or (C) in any Loan Party’s organizational identification number; provided, provided that none of the Borrowers Loan Parties shall not effect or permit any such change unless all filings have been made, or will 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 in all the Collateral for the benefit of the Secured Parties and (ii) promptly notify the Collateral Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(gf) The Collateral and Guarantee Requirement Requirement, and the other provisions of this Section 5.10 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) any Real Property held by the Borrowers Borrower or any of their Subsidiaries the Subsidiariesany Loan Party as a lessee under a lease or that has an individual fair market value (as determined by the Borrower in good faith) in an amount less than $3.0 million, unless such Real Property is subject to a mortgage, trust deed, deed of trust, deed to secure debt, assignment of leases and rents or other security document in favor of the Term Loan Agent or any subagent thereof to secure the Term Obligations or other obligations under the Term Loan Documents, (ii) any vehiclemotor vehicles and other assets subject to certificates of title (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing an initial Uniform Commercial Code financing statement (UCC-1)), (iii) cashpledges and security interests to the extent prohibited by applicable law, deposit accounts rule, regulation or contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and securities accountsexcept to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) Margin Stock and any Equity Interests acquired after the Closing Date (of any persons other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person acquired issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and Wholly-Owned Subsidiaries to the extent thatnot permitted by the terms of such person’s articles or certificate of incorporation, and for by-laws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents, in each case, so long as (A) doing so would violate applicable law or a such contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time was not entered into in contemplation of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiarythereof, or (v) any assets acquired after the Closing Dateassets, to the extent thata security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary LoanCovenant Party) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Applicable Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law, (ix) solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, pending United States of America “intent-to-use” trademark applications for which a verified statement of use or an amendment to allege use has not been filed with and accepted by the United States Patent and Trademark Office, (x) any Equity Interests of Gulf Island Pond Oxygenation Project to the extent not permitted by the terms of such person’s articles or certificate of incorporation, by laws, limited liability company operating agreement, partnership agreement, joint venture or other organizational documents and (xi) any Equity Interests of Verso Quinnesec REP LLC so long as, taking as Verso Quinnesec LLC is not permitted to grant a security interest in such actions would violate an enforceable contractual obligation binding on such assets that existed at Equity Interests pursuant to the time terms of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets QLICI Facility; provided that (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(iA) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Administrative Agent, Holdings and the Borrowers Borrowereach First Tier Covenant Party shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses clause (iii) above, and (B) the foregoing exclusions of clause (iii), (iv), (vi), (viii) and or (vxi) above.
above shall in no way be construed (h1) Upon the reasonable request (in each case, taking into account the relative costs (to apply to the Loan Partiesextent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) and benefits (to apply to the Secured Parties)extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral Agent and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the Required Lenderstaking of any other actions to perfect by control any security interest in any deposit accounts, takesecurities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or cause to be takenany other Loan Document, such action as may be reasonably requested (including, without limitation (i) subject the Administrative Agent may grant extensions of time for the requirements of creating or perfecting security interests in or the obtaining of title insurance, legal opinions, appraisals, flood insurance and surveys with respect to particular assets (including extensions beyond the above-mentioned cost-benefit analysisClosing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the execution and delivery Borrower, that perfection or obtaining of pledge such items cannot be accomplished without undue effort or security agreements governed expense by applicable local law and the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted Liens required to be taken under granted from time to time pursuant to this Agreement and the laws of the applicable jurisdictions. Furthermore, Holdings will, Security Documents shall be subject to exceptions and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) In the event that any requirement limitations set forth in Section 4.02(dthe Security Documents and (iii) (without giving effect the Administrative Agent and the Borrower may make such modifications to the proviso thereof) has not been satisfied in full on Mortgages, and execute and/or consent to such easements, covenants, rights of way or prior to the Closing Date, use commercially reasonably 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 120 days following the Closing Date similar instruments (or such later date as and the Administrative Agent may agree because to subordinate the lien of delays despite diligent effortsany Mortgage to any such easement, covenant, right of way or similar instrument of record or may agree to recognize any tenant pursuant to an agreement in a form and substance reasonably acceptable to the Administrative Agent), as are reasonable or necessary and otherwise permitted by this Agreement and the other Loan Documents.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Verso Corp)