Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. ------- (a) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agent. (b) Company will furnish to Newco from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Newco may reasonably request, all in reasonable detail. (c) Company shall notify Newco, within thirty (30) days after the occurrence thereof, of the acquisition of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco. (d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manual.
Appears in 2 contracts
Sources: Secured Loan Agreement (Harrys Farmers Market Inc), Secured Loan Agreement (Progressive Food Concepts Inc)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver be continuing when any Class of Notes is Outstanding (and the Commitment Period Termination Date has not occurred), the Trustee shall retain the Collateral securing the Notes intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral securing the Notes in accordance with the Priority of Payments and the provisions of Sections 10, 12 and 13 unless:
(i) the Trustee determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to Newcodischarge in full the amounts then due and unpaid on the Notes for principal, interest (including Class C Deferred Interest, Class D Deferred Interest, Class E Deferred Interest, Defaulted Interest and shallinterest on Defaulted Interest, except if any), Commitment Fee due and unpaid administrative expenses as limited by clause (2) of Section 11.1(a)(i) and any accrued and unpaid Hedge Payment Amounts payable by the Issuer pursuant to the extent prohibited Hedge Agreements, including termination payments (assuming, for this purpose, that each Hedge Agreement has been terminated by reason of an event of default or termination with respect to the Nationwide Debt AgreementIssuer); or
(ii) if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of each Class of Notes voting as a separate Class direct, execute subject to the provisions hereof, the sale and deliver or cause liquidation of the Collateral. The Trustee shall give written notice of the retention of the Collateral to the Issuer, with a copy to the Co-Issuer, the Hedge Counterparty and the Collateral Manager. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral and such other reports in connection with securing the Collateral as Newco may reasonably request, all in reasonable detailNotes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, (i) the Trustee shall notify Newcoobtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers, within thirty as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager and its Affiliates, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security and (30ii) such condition will be deemed not to exist if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of the Controlling Class give notice to the Trustee to the effect that the Trustee has not followed the procedures set forth in this Indenture in making the relevant determinations required pursuant to Section 5.5(a)(i). For the purposes of making the determinations required pursuant to Section 5.5(a)(i), the Trustee shall apply the standards set forth in Section 9.1(b). In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(i) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation. The Trustee shall deliver to the Noteholders, the Collateral Manager, the Hedge Counterparty and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(i) no later than 10 days after making such determination. The Trustee shall make the occurrence thereof, determinations required by Section 5.5(a)(i) within 30 days after an Event of Default and at the request of a Majority of the acquisition Controlling Class at any time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(i). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(i), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite Aggregate Outstanding Principal Amount of any property by Company that Class of Notes have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Note of a Class who is not subject to the existing liens and security interests, in favor also a Holder of Newco, Notes of another Class or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Note is Outstanding (and the Commitment Period Termination Date has occurred), except to the extent prohibited by Trustee shall retain the Nationwide Debt AgreementCollateral securing the Notes intact, collect and cause each Subsidiary to cause the collection of the proceeds thereof and make and apply all tangible payments and deposits and maintain all accounts in respect of the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and Notes in accordance with any manufacturer's manualthe Priority of Payments and the provisions of Section 10 and Section 12 unless a Majority-in-Interest of Preferred Shareholders direct the sale and liquidation of the Collateral.
Appears in 2 contracts
Sources: Indenture (Taberna Realty Finance Trust), Indenture (Taberna Realty Finance Trust)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company Notwithstanding anything to the contrary herein, if an Event of Default shall execute have occurred and deliver be continuing when any of the Class A Loan is Outstanding, the Collateral Agent, Loan Agent and the Note Administrator, as applicable, shall (except as otherwise expressly permitted or required under this Indenture and Credit Agreement) retain the Collateral securing the Debt intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Debt in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall not sell or liquidate the Collateral, unless either:
(i) (A) the Collateral Agent, pursuant to NewcoSection 5.5(c), determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full (1) the amounts then due and unpaid on the Debt for principal and interest, and shall(2) upon receipt of information from Persons to whom fees and expenses are payable, except all other amounts payable prior to payment of principal of the Debt due and payable pursuant to Section 11.1(a)(iii) or due and payable to the extent prohibited Servicer under the Servicing Agreement in respect of which funds have not been withdrawn from the Collection Account pursuant to the Servicing Agreement, including, without limitation, any liquidation and other fees and other compensation payable under the related Servicing Agreement, and (B) the Majority of the Controlling Class agrees with such determination; or
(ii) the Majority of the Controlling Class direct the sale and liquidation of all or a portion of the Collateral. In the event of a sale of all or a portion of the Collateral pursuant to clause (ii) above, the Collateral Agent shall sell those Collateral identified by the Nationwide Debt AgreementMajority of the Controlling Class pursuant to a written direction in form and substance satisfactory to the Collateral Agent, execute and deliver all proceeds of such sale shall be remitted to the Note Administrator or cause Loan Agent for distribution in the order set forth in Section 11.1(a)(iii). The Collateral Agent shall give written notice of the retention of the Collateral by the Collateral Agent to the Issuer, the Trustee, the Loan Agent and the Servicer. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time to time statements and schedules further identifying and describing require a sale of the Collateral and such other reports securing the Class A Loan if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Collateral as Newco may reasonably request, all in reasonable detailAgent to preserve the Collateral securing the Class A Loan if prohibited by applicable law.
(c) Company In assisting the Collateral Agent to determine whether the condition specified in Section 5.5(a)(i) exists, the Class A Lender shall notify Newcoobtain bid prices with respect to each Mortgage Asset from two (2) dealers that, within thirty at that time, engage in the trading, origination or securitization of whole mortgage loans similar to the Mortgage Assets (30) days after or, if only one such dealer can be engaged, then the occurrence Class A Lender shall obtain a bid price from such dealer or, if no such dealer can be engaged, from a pricing service). The Class A Lender shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Mortgage Asset and provide the Collateral Agent, the Trustee, the Loan Agent and the Note Administrator with the results thereof. For the purposes of determining issues relating to the market value of any Mortgage Asset and the execution of a sale or other liquidation thereof, the Class A Lender may, but need not, retain at the expense of the acquisition Issuer and rely on an opinion of an Independent investment banking firm of national reputation or other appropriate advisors (the cost of which shall be payable as an Issuer Administrative Expense). The Collateral Agent shall promptly deliver to the Debtholders and the Servicer, and the Collateral Agent shall post to the Collateral Agent’s Website, a report stating the results of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral determination required to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualmade pursuant to Section 5.5(a)(i).
Appears in 2 contracts
Sources: Indenture and Credit Agreement (Terra Secured Income Fund 5, LLC), Indenture and Credit Agreement (Terra Property Trust, Inc.)
Preservation of Collateral. Following the occurrence of a Default or an Event of Default, in addition to the rights and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
remedies set forth in Section 11.1, the Agent may at any time take such steps as the Agent deems necessary to protect the Agent’s interest in and to preserve the Collateral, including (a) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary hiring of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco such security guards or the Agent (placing of other security protection measures as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, deem appropriate; (b) employing and maintaining at any of any Loan Party’s premises a custodian who shall have full authority to do all acts necessary to protect the Agent’s interests in forms satisfactory the Collateral; (c) leasing warehouse facilities to Newco, and take all further action that Newco or which the Agent may requestmove all or part of the Collateral; and (d) using any Loan Party’s owned or leased lifts, hoists, trucks and other facilities or which may be reasonably necessary equipment for handling or desirableremoving the Collateral. The Agent shall have, and is hereby granted by the Loan Parties to perfect the fullest extent that the Loan Parties can provide such grant, a right of ingress and keep perfected a second-priority security interest in egress to any Real Property where the Collateral granted by Company is located, and may proceed over and through any such Real Property. Each Loan Party shall cooperate fully with all of the Agent’s efforts to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral as permitted in the first sentence of this Section 4.4 and Newco's security interest thereinwill take such actions to preserve the Collateral as the Agent may direct. Should Company fail to do so after receipt of five (5) business days' notice in writingThe Agent is hereby authorized by the Loan Parties, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco the Lenders, and the Issuer, from time to time statements in the Agent’s sole discretion, (a) after the occurrence of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Loans to the Borrowers which the Agent, in its sole discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and schedules further identifying and describing other Obligations, or (iii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement (any such amount, a “Protective Advance”). All of the Agent’s expenses of preserving the Collateral in accordance with the foregoing, including any expenses relating to the bonding of a custodian, shall be charged to the Loan Account as a Revolving Loan that is a Base Rate Loan and such other reports added to the Obligations. With respect to custody, safekeeping and physical preservation of the Collateral in connection its possession, the Agent shall deal with the Collateral as Newco may reasonably request, all in reasonable detail.
(c) Company shall notify Newco, within thirty (30) days after the occurrence thereof, of the acquisition of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order manner as when new, ordinary wear and tear excepted, and in accordance the Agent deals with any manufacturer's manualsimilar property for similarly situated borrowers.
Appears in 2 contracts
Sources: Credit Agreement (Ramaco Resources, Inc.), Credit and Security Agreement (Ramaco Resources, Inc.)
Preservation of Collateral. Following the occurrence of a Default or an Event of Default, in addition to the rights and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
remedies set forth in Section 11.1, the Agent may at any time take such steps as the Agent deems necessary to protect the Agent’s interest in and to preserve the Collateral, including (a) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary hiring of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco such security guards or the Agent (placing of other security protection measures as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, deem appropriate; (b) employing and maintaining at any of any Loan Party’s premises a custodian who shall have full authority to do all acts necessary to protect the Agent’s interests in forms satisfactory the Collateral; (c) leasing warehouse facilities to Newco, and take all further action that Newco or which the Agent may requestmove all or part of the Collateral; and (d) using any Loan Party’s owned or leased lifts, hoists, trucks and other facilities or which may be reasonably necessary equipment for handling or desirableremoving the Collateral. The Agent shall have, and is hereby granted by the Loan Parties to perfect the fullest extent that the Loan Parties can provide such grant, a right of ingress and keep perfected a second-priority security interest in egress to any Real Property where the Collateral granted by Company is located, and may proceed over and through any such Real Property. Each Loan Party shall cooperate fully with all of the Agent’s efforts to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral as permitted in the first sentence of this Section 4.4 and Newco's security interest thereinwill take such actions to preserve the Collateral as the Agent may direct. Should Company fail to do so after receipt of five (5) business days' notice in writingThe Agent is hereby authorized by the Loan Parties, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco the Lenders, and the Issuer, from time to time statements in the Agent’s sole discretion, (a) after the occurrence of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Loans to the Borrowers which the Agent, in its sole discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Advances and schedules further identifying and describing other Obligations, or (iii) to pay any other amount chargeable to the Borrowers pursuant to the terms of this Agreement. All of the Agent’s expenses of preserving the Collateral in accordance with the foregoing, including any expenses relating to the bonding of a custodian, shall be charged to the Loan Account as a Revolving Loan that is a Base Rate Loan and such other reports added to the Obligations. With respect to custody, safekeeping and physical preservation of the Collateral in connection its possession, the Agent shall deal with the Collateral as Newco may reasonably request, all in reasonable detail.
(c) Company shall notify Newco, within thirty (30) days after the occurrence thereof, of the acquisition of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order manner as when new, ordinary wear and tear excepted, and in accordance the Agent deals with any manufacturer's manualsimilar property for similarly situated borrowers.
Appears in 1 contract
Sources: Credit and Security Agreement (Ramaco Resources, Inc.)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of --------------------------- Default shall execute have occurred and deliver be continuing when any of the Notes is Outstanding, the Trustee shall retain the Collateral securing the Notes intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all Accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Articles X and XII unless either:
(i) the Trustee (or an Independent investment banking firm of national standing selected by the Trustee) determines that the anticipated proceeds of a Sale or liquidation of the Collateral (after deducting the reasonable expenses of such Sale or liquidation) would be sufficient to Newcodischarge in full the amounts then due and unpaid on the Notes for principal, interest (including Defaulted Interest and interest on Defaulted Interest, if any), and shalldue and unpaid Mandatory Expenses as limited by subclause (A) of Section 11.01(a)(i), except and a Majority of the Controlling Class agrees with such determination; or
(ii) the Holders of a Special Majority of the Aggregate Outstanding Amount of each Class of Notes or the Liquidity Facility Provider, voting as separate Classes, direct the Sale and liquidation of the Collateral. The Trustee shall give written notice of the retention of the Collateral to the extent prohibited by the Nationwide Debt AgreementIssuer. So long as such Event of Default is continuing, execute and deliver or cause any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.05(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.05(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral and such other reports in connection with securing the Collateral as Newco may reasonably request, all in reasonable detailNotes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.05(a)(i) exists, the Trustee shall notify Newcoobtain bid prices with respect to each Security contained in the Collateral from two (2) Independent nationally recognized dealers, within thirty as specified by the Servicer in writing, which are Independent from each other and the Servicer, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such Security. In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Collateral Interests and the execution of a Sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.05(a)(i) exists, the Trustee shall be provided with an opinion of an Independent investment banking firm of national reputation.
(30i) no later than ten (10) days after making such determination but in any case after such Sale. The Trustee shall make the occurrence thereof, determinations required by Section 5.05(a)(i) within 30 days after an Event of Default and at the request of a Majority of the acquisition Controlling Class or the Liquidity Facility Provider at any time during which the Trustee retains the Collateral pursuant to Section 5.05
(a) (i). In the case of each calculation made by the Trustee pursuant to Section 5.05(a)(i), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite Aggregate Outstanding Amount of any property by Company that Class of Notes have given any direction or notice or have agreed pursuant to Section 5.05(a), any Holder of a Class of Notes who is not subject to the existing liens and security interests, in favor also a Holder of Newco, another Class of Notes or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Notes are Outstanding, except to the extent prohibited by Trustee shall retain the Nationwide Debt AgreementCollateral securing the Notes intact, collect and cause each Subsidiary to cause the collection of the proceeds thereof and make and apply all tangible payments and deposits and maintain all Accounts in respect of the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and Notes in accordance with any manufacturer's manualthe Priority of Payments and the provisions of Article X unless a Majority of Preferred Units direct the Sale and liquidation of the Collateral.
Appears in 1 contract
Sources: Indenture (Aon Corp)
Preservation of Collateral. Following the occurrence and Perfection during the continuance of Security Interests --------------------------------------------------------------- Therein. -------
an Event of Default, in addition to the rights and remedies set forth in Section 11.1, the Lender may at any time take such steps as the Lender deems necessary to protect the Lender’s interest in and to preserve the Collateral, including (a) Company the hiring of such security guards or the placing of other security protection measures as the Lender may deem appropriate; (b) employing and maintaining at any of any Loan Party’s premises a custodian who shall execute have full authority to do all acts necessary to protect the Lender’s interests in the Collateral; (c) leasing warehouse facilities to which the Lender may move all or part of the Collateral; and deliver to Newco(d) using any Loan Party’s owned or leased lifts, hoists, trucks and other facilities or equipment for handling or removing the Collateral. The Lender shall have, and shallis hereby granted, except a right of ingress and egress to the extent prohibited by places where the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to NewcoCollateral is located, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect proceed over and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets through any of any Subsidiaries Loan Party’s Real Property. Each Loan Party shall cooperate fully with all of Company provided in Section 4.2 hereof, or otherwise the Lender’s efforts to protect and preserve the Collateral as permitted in the foregoing sentence and Newco's security interest thereinwill take such actions to preserve the Collateral as the Lender may direct. Should Company fail to do so after receipt of five (5) business days' notice in writingThe Lender is hereby authorized by the Loan Parties and the Issuer, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco from time to time statements and schedules further identifying and describing in the Collateral and such other reports in connection with the Collateral as Newco may reasonably requestLender’s sole discretion, all in reasonable detail.
(ca) Company shall notify Newco, within thirty (30) days after the occurrence of a Default or an Event of Default, or (b) at any time that any of the other applicable conditions precedent set forth in Section 8.2 hereof have not been satisfied, to make Revolving Loans to the Borrowers which the Lender, in its sole discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the acquisition of Advances and other Obligations, or (iii) to pay any property by Company that is not subject other amount chargeable to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except Borrowers pursuant to the extent prohibited by terms of this Agreement. All of the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Lender’s expenses of preserving the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with the foregoing, including any manufacturer's manualexpenses relating to the bonding of a custodian, shall be charged to the Loan Account as a Revolving Loan of a Base Rate Loan and added to the Obligations.
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Notwithstanding anything to the contrary herein, if an Event of Default shall have occurred and be continuing when any of the Notes are Outstanding, the Trustee shall retain the Collateral securing the Notes intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 unless:
(i) the Trustee, pursuant to Section 5.5(c), determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full the amounts then due and unpaid on the Notes (including Class AR Commitment Fees), Company shall execute Administrative Expenses due and deliver payable pursuant to Newcoclauses (3) and (42) of Section 11.1(a)(i) and clauses (1) and (23) of Section 11.1(a)(ii), the Senior Collateral Management Fees due and payable pursuant to clause (4) of Section 11.1(a)(i), the Subordinate Collateral Management Fees due and payable pursuant to clause (43) of Section 11.1(a)(i), any amounts due and unpaid to each Hedge Counterparty and the Upfront Swap Counterparty, including without limitation, any payments (however described) due and payable by the Issuer under each Hedge Agreement and the Upfront Swap Agreement upon a termination of such Hedge Agreement and the Upfront Swap Agreement (including any interest that may accrue thereon), any amounts due and unpaid to any Synthetic Asset, including without limitation, any payments due and payable by the Issuer under such Synthetic Asset upon a termination of such Synthetic Asset (including any interest that may accrue thereon), amounts due and payable to the Advancing Agent and the Trustee, in its capacity as Backup Advancing Agent, in respect of unreimbursed Interest Advances and Reimbursement Interest, and shall, except amounts due and payable to the extent prohibited Collateral Manager in respect of unreimbursed Cure Advances, and the Controlling Class agrees with such determination; or
(ii) the Holders of 66 2/3% of the Aggregate Outstanding Amount of each Class of Notes (each voting as a separate Class) (and each Hedge Counterparty, unless each shall be paid in full the amounts due and unpaid, including, without limitation, any payments (however described) due and payable by the Nationwide Debt AgreementIssuer under each Hedge Agreement upon a termination of such Hedge Agreement (including any interest that may accrue thereon), execute the Upfront Swap Counterparty, unless it shall be paid in full the amounts due and deliver unpaid, including, without limitation, any payments due and payable by the Issuer under the Upfront Swap Agreement upon a termination of the Upfront Swap Agreement (including any interest that may accrue thereon) and any Synthetic Asset Counterparty, unless it shall be paid in full the amounts due and unpaid, including, without limitation, any payments due and payable by the Issuer under such Synthetic Asset upon a termination of such Synthetic Asset (including any interest that may accrue thereon)), direct, subject to the provisions of this Indenture, the sale and liquidation of the Collateral; or
(iii) so long as MBIA or cause the Senior Class A Notes are the Controlling Class, if the Event of Default that has occurred and is continuing is an Event of Default specified in clause (a), (b) or (j) of the definition thereof, the Controlling Class or, if MBIA is no longer the Controlling Class, the holders of more than 50% of the Aggregate Outstanding Amount of the Senior Class A Notes (and each Hedge Counterparty, unless each shall be paid in full the amounts due and unpaid, including, without limitation, any Subsidiary payments (however described) due and payable by the Issuer under each Hedge Agreement upon a termination of Company such Hedge Agreement (including any interest that may accrue thereon), the Upfront Swap Counterparty, unless it shall be paid in full the amounts due and unpaid, including, without limitation, any payments (however described) due and payable by the Issuer under the Upfront Swap Agreement upon a termination of the Upfront Swap Agreement (including any interest that may accrue thereon) and any Synthetic Asset Counterparty, unless it shall be paid in full the amounts due and unpaid, including, without limitation, any payments due and payable by the Issuer under such Synthetic Asset upon a termination of such Synthetic Asset (including any interest that may accrue thereon)), direct, subject to execute the provisions of this Indenture, the sale and deliver liquidation of the Collateral. If any of (i), (ii) or (iii) is satisfied, the Trustee shall liquidate the Collateral and terminate each Hedge Agreement and each Synthetic Asset and, on the second Business Day following the Business Day on which the Trustee notifies the Issuer, the Collateral Manager, each Hedge Counterparty, each Synthetic Asset Counterparty, the Upfront Swap Counterparty, MBIA and each Rating Agency that such liquidation and termination is completed, apply the proceeds thereof in accordance with the Priority of Payments. If the Collateral is not liquidated pursuant to Newco the above provisions, the Trustee shall give written notice of the retention of the Collateral to the Issuer, the Co-Issuer, the Collateral Manager, the Upfront Swap Counterparty, MBIA, each Hedge Counterparty and each Synthetic Asset Counterparty and the Rating Agencies. So long as such Event of Default is continuing, any such retention pursuant to this Section 5.5(a) may be rescinded at any time or times hereafter at when the request of Newco or the Agent conditions specified in clause (as defined in Section 4.4 belowi), all financing statements (ii) or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"iii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing sell the Collateral and such other reports securing the Notes if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral as Newco may reasonably request, all in reasonable detailsecuring the Notes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, the Collateral Manager shall notify Newcoobtain bid prices with respect to each Pledged Collateral Interest from two dealers (Independent of the Collateral Manager and any of its Affiliates) at the time making a market in such Pledged Collateral Interests (or, if there is only one market maker, then the Collateral Manager shall obtain a bid price from that market maker or, if no market maker, from a pricing service). The Collateral Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Pledged Collateral Interest. For the purposes of determining issues relating to the Market Value of the Pledged Collateral Interest and the execution of a sale or other liquidation thereof, the Trustee may, but need not, retain at the expense of the Issuer and rely on an opinion of an Independent investment banking firm of national reputation in connection with a determination (notwithstanding that such opinion will not be the basis for such determination) as to whether the condition specified in Section 5.5(a)(i) exists. The Trustee shall promptly deliver to the Noteholders, the Upfront Swap Counterparty, each Hedge Counterparty and each Synthetic Asset Counterparty a report stating the results of any determination required to be made pursuant to Section 5.5(a)(i). The Trustee shall make the determinations required by Section 5.5(a)(i) within thirty (30) 30 days after the occurrence thereof, an Event of Default if requested by a Majority of the acquisition of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of NewcoControlling Class.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Notes are Outstanding and all amounts due and unpaid under the Upfront Swap Counterparty, except to each Hedge Agreement and each Synthetic Asset have been paid in full, the extent prohibited by Trustee shall retain the Nationwide Debt AgreementCollateral securing the Notes intact, collect and cause each Subsidiary to cause the collection of the proceeds thereof and make and apply all tangible payments and deposits and maintain all accounts in respect of the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and Notes in accordance with any manufacturer's manualthe Priority of Payments and the provisions of Article 10 and Article 12 unless a Majority of the Income Noteholders direct the sale and liquidation of the Collateral.
Appears in 1 contract
Sources: Indenture (CBRE Realty Finance Inc)
Preservation of Collateral. Borrower and Perfection of Security Interests --------------------------------------------------------------- Therein. -------Guarantor shall:
(aA) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral in good condition and Newco's security interest therein. Should Company fail to do so after receipt of five order (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Newco may reasonably request, all in reasonable detail.
(c) Company shall notify Newco, within thirty (30) days after the occurrence thereof, of the acquisition of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted) and not permit it to be abused or misused;
(B) defend the Collateral against all claims and demands of all Persons other than Lender;
(C) not allow any Collateral to be affixed to real estate;
(D) not allow any Collateral nor any interest therein to be sold, leased or in any way transferred, except Inventory in the ordinary course of the Borrower's or Guarantor's business and obsolete Equipment and Inventory;
(E) until receiving contrary instructions from Lender as may be permitted under the terms of this Agreement, collect its Accounts, contract rights, chattel paper and other debts in accordance the ordinary course of business;
(F) upon request of Lender as may be permitted under the terms of this Agreement, pay or deliver all proceeds of Accounts and all proceeds of Inventory to Lender immediately upon receipt in the identical form received without co-mingling with other property;
(G) when and to the extent required by Lender as may be permitted under the terms of this Agreement, notify account debtors and obligors that their Accounts, contract rights, instruments, documents or chattel paper have been assigned to Lender and shall be paid directly to Lender;
(H) take necessary steps to preserve the liability to the Borrower and the Guarantor of their account debtors, except in the ordinary course of business;
(I) take any manufactureraction reasonably required by Lender with reference to the Federal Assignment of Claims Act;
(J) during regular business hours of Borrower and Guarantor and upon reasonable notice, allow Lender to inspect any of the Borrower's manualor Guarantor's properties or offices and to inspect the Collateral and copy all records relating to the Collateral and Loan and to conduct audits of Collateral levels and to inspect Borrower's and Guarantor's books and records at such intervals as Lender shall require and shall pay all costs associated with such inspections if an Event of Default or Default has occurred and is continuing or if a Default or Event of Default is discovered during said inspection;
(K) transfer possession of and assign all instruments, documents and chattel paper, which are part of the Collateral, to Lender, immediately upon request as may be permitted under the terms of this Agreement;
(L) perfect a security interest (using a method reasonably satisfactory to Lender) in goods covered by any instrument, document or chattel paper in the Collateral;
(M) notify Lender of any material change occurring in or to Collateral or any material adverse change to its business or prospects, or in any material fact or circumstance warranted or represented by Borrowers herein, or furnished to Lender, or if any Default or Event of Default occurs;
(N) pay all costs required under the terms of this Agreement that are necessary to perform any act or duty required by this Agreement, including, but not limited to, attorneys' fees, insurance premiums, taxes and assessments;
(O) maintain such insurance as is required by Lender under Paragraph 1.9 hereof naming Lender as Loss Payee and/or Additional Insured; and
(P) maintain compliance in all material respects with all Environmental Laws, including without limitation the disposition of Hazardous Substances; and
(Q) maintain compliance with all laws, ordinances, rules and regulations of any governmental authority or subdivision, including without limitation all usury laws; and
(R) upon request by Lender as may be permitted under the terms of this Agreement, sign or allow Lender to sign any papers necessary to obtain, preserve, enforce and liquidate this security interest in any jurisdiction and during the existence of a Default or Event of Default, Borrower and Guarantor hereby appoints Lender its agent and attorney-in-fact, irrevocable as coupled with an interest, for such purpose.
Appears in 1 contract
Sources: Commercial Loan and Security Agreement (Cas Medical Systems Inc)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver be continuing when any Class of Notes is Outstanding, the Trustee shall retain the Collateral securing the Notes intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Sections 10, 12 and 13 unless:
(i) the Trustee determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to Newcodischarge in full the amounts then due and unpaid on the Notes for principal, interest (including Class C Deferred Interest, Class D Deferred Interest, Class E Deferred Interest, Defaulted Interest and shallinterest on Defaulted Interest, except if any), due and unpaid administrative expenses as limited by clause (2) of Section 11.1(a)(i) and any accrued and unpaid Hedge Payment Amounts payable by the Issuer pursuant to the extent prohibited Hedge Agreements, including termination payments (assuming, for this purpose, that each Hedge Agreement has been terminated by reason of an event of default or termination with respect to the Nationwide Debt AgreementIssuer); or
(ii) if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of each Class of Notes voting as a separate Class direct, execute subject to the provisions hereof, the sale and deliver or cause liquidation of the Collateral. The Trustee shall give written notice of the retention of the Collateral to the Issuer, with a copy to the Co-Issuer, the Hedge Counterparty and the Collateral Manager. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral and such other reports in connection with securing the Collateral as Newco may reasonably request, all in reasonable detailNotes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, (i) the Trustee shall notify Newcoobtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers, within thirty as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager and its Affiliates, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security and (30ii) such condition will be deemed not to exist if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of the Controlling Class give notice to the Trustee to the effect that the Trustee has not followed the procedures set forth in this Indenture in making the relevant determinations required pursuant to Section 5.5(a)(i). For the purposes of making the determinations required pursuant to Section 5.5(a)(i), the Trustee shall apply the standards set forth in Section 9.1(b). In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(i) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation. The Trustee shall deliver to the Noteholders, the Collateral Manager, the Hedge Counterparty and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(i) no later than 10 days after making such determination. The Trustee shall make the occurrence thereof, determinations required by Section 5.5(a)(i) within 30 days after an Event of Default and at the request of a Majority of the acquisition Controlling Class at any time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(i). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(i), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite Aggregate Outstanding Principal Amount of any property by Company that Class of Notes have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Note of a Class who is not subject to the existing liens and security interests, in favor also a Holder of Newco, Notes of another Class or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Note is Outstanding, except to the extent prohibited by Trustee shall retain the Nationwide Debt AgreementCollateral securing the Notes intact, collect and cause each Subsidiary to cause the collection of the proceeds thereof and make and apply all tangible payments and deposits and maintain all accounts in respect of the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and Notes in accordance with any manufacturer's manualthe Priority of Payments and the provisions of Section 10 and Section 12 unless a Majority-in-Interest of Preferred Shareholders direct the sale and liquidation of the Collateral.
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company shall execute and deliver to Newco, and shall, except Notwithstanding anything to the extent prohibited contrary herein, if an Event of Default shall have occurred and be continuing when the Class A Loans or any of the Notes are Outstanding, the Trustee and the Note Administrator, as applicable, shall (except as otherwise expressly permitted or required under this Indenture) retain the Collateral securing the Class A Loans and the Secured Notes, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral, the Class A Loans and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall not sell or liquidate the Collateral, unless either:
(i) the Note Administrator, pursuant to Section 5.5(c), determines (based upon information delivered to it in accordance with this Indenture) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full the amounts then due and unpaid on the Class A Loans and the Investment Grade Notes, Company Administrative Expenses due and payable pursuant to the Priority of Payments, the Collateral Manager Fees due and payable pursuant to the Priority of Payments and amounts due and payable to the Advancing Agent, the Backup Advancing Agent and the Trustee, in respect of unreimbursed Interest Advances and Reimbursement Interest, for principal and interest (including any accrued and unpaid Deferred Interest), and, upon receipt of information from Persons to whom fees and expenses are payable, all other amounts payable prior to payment of principal on the Class A Loans and the Notes due and payable pursuant to Section 11.1(a)(iii) and the holders of a Majority of the Controlling Class agrees with such determination; or
(ii) a Supermajority of the Class A Loans and each Class of Investment Grade Notes (each voting as a separate Class) directs the sale and liquidation of all or a portion of the Collateral. In the event of a sale of all or a portion of the Collateral pursuant to clause (ii) above, the Special Servicer on behalf of the Trustee shall be required to sell that portion of the Collateral identified by the Nationwide Debt Agreementrequisite Class A Lenders or Noteholders and all proceeds of such sale shall be remitted to the Note Administrator for distribution in the order set forth in Section 11.1(a). The Note Administrator shall give written notice of the retention of the Collateral by the Custodian to the Issuer, execute the Collateral Manager, the Trustee, the Servicer, the Special Servicer and deliver or cause the Rating Agencies. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time to time statements and schedules further identifying and describing require a sale of the Collateral and such other reports if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral as Newco may reasonably request, all in reasonable detailsecuring the Class A Loans and the Secured Notes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, the Collateral Manager shall notify Newcoobtain bid prices with respect to each Mortgage Asset from two dealers (Independent of the Collateral Manager and any of its Affiliates) at the time making a market in such Mortgage Assets that, within thirty at that time, engage in the trading, origination or securitization of whole loans or participations similar to the Mortgage Assets (30) days after or, if only one such dealer can be engaged, then the occurrence Collateral Manager shall obtain a bid price from such dealer or, if no such dealer can be engaged, from a pricing service). The Collateral Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Mortgage Asset and provide the Trustee and the Note Administrator with the results thereof. For the purposes of determining issues relating to the market value of any Mortgage Asset and the execution of a sale or other liquidation thereof, the Special Servicer may, but need not, retain at the expense of the acquisition Issuer and rely on an opinion of an Independent investment banking firm of national reputation or other appropriate advisors (the cost of which shall be payable as a Company Administrative Expense) in connection with a determination as to whether the condition specified in Section 5.5(a)(i) exists. The Note Administrator shall promptly deliver to the Class A Lenders, the Noteholders and the Servicer, and the Note Administrator shall post to the Note Administrator’s Website, a report stating the results of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral determination required to be maintained and preserved in made pursuant to Section 5.5(a)(i) based solely on the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualCollateral Manager’s determination made pursuant to this Section 5.5(c).
Appears in 1 contract
Sources: Indenture and Security Agreement (Lument Finance Trust, Inc.)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Notwithstanding anything to the contrary herein, if an Event of Default shall have occurred and be continuing when any of the Notes are Outstanding, the Trustee shall (except as otherwise expressly permitted or required under this Indenture) retain the Collateral securing the Notes, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall not sell or liquidate the Collateral, unless either:
(i) the Trustee, pursuant to Section 5.5(c), determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full the amounts then due and unpaid on the Notes, Company shall execute Administrative Expenses due and deliver payable pursuant to Newcothe Priority of Payments, the Collateral Manager Fees due and payable pursuant to the Priority of Payments and amounts due and payable to the Backup Advancing Agent and the Advancing Agent, in that order, in respect of unreimbursed Interest Advances and Reimbursement Interest, and shallthe holders of a Majority of the Controlling Class agrees with such determination; or
(ii) the Holders of at least 66⅔% of the Aggregate Outstanding Amount of each Class of Notes (each voting as a separate Class) direct, except subject to the extent prohibited provisions of this Indenture, the sale and liquidation of all or a portion of the Collateral. In the event of a sale of a portion of the Collateral pursuant to clause (ii) above, the Special Servicer on behalf of the Trustee shall sell those Collateral identified by requisite Noteholders pursuant to a written direction in form and substance satisfactory to the Nationwide Debt AgreementTrustee and all proceeds of such sale shall be distributed in the order set forth in Section 11.1(a)(iii). The Trustee shall give written notice of the retention of the Collateral to the Issuer, execute the Co-Issuer, the Collateral Manager and deliver or cause the Rating Agency. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing sell the Collateral and such other reports securing the Notes if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral as Newco may reasonably request, all in reasonable detailsecuring the Notes if prohibited by applicable law.
(c) Company To assist the Trustee in determining whether the condition specified in Section 5.5(a)(i) exists, the Collateral Manager shall notify Newcoobtain bid prices with respect to each Pledged Mortgage Loan from two dealers (Independent of the Collateral Manager and any of its Affiliates) at the time making a market in such Mortgage Loans (or, within thirty (30) days after if there is only one market maker, then the occurrence Collateral Manager shall obtain a bid price from that market maker or, if no market maker, from a pricing service). The Collateral Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Pledged Mortgage Loan and provide the Trustee with the results thereof. For the purposes of determining issues relating to the market value of any Pledged Mortgage Loan and the execution of a sale or other liquidation thereof, the Trustee may, but need not, retain at the expense of the acquisition Issuer and rely on an opinion of an Independent investment banking firm of national reputation in connection with a determination (notwithstanding that such opinion will not be the basis for such determination) as to whether the condition specified in Section 5.5(a)(i) exists. The Trustee shall make available to Privileged Persons a report stating the results of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral determination required to be maintained and preserved in made pursuant to Section 5.5(a)(i) on the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualTrustee’s Website.
Appears in 1 contract
Preservation of Collateral. Each Note Party will safeguard and Perfection of Security Interests --------------------------------------------------------------- Thereinprotect all Collateral for Agent’s and the other Secured Parties’ general account. -------
In addition to the rights and remedies set forth in Section 11.1 hereof, Agent, subject to the ABL/Term Intercreditor Agreement: (a) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco may at any time or times hereafter at take such steps as the request Agent deems necessary in the exercise of Newco its Permitted Discretion to protect Agent’s interest in and to preserve the Collateral, including upon the occurrence and during the continuance of an Event of Default, the hiring of such security guards or the placing of other security protection measures as Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Required Noteholders may deem appropriate; (b) upon the occurrence and during the continuance of an Event of Default, may employ and maintain at any of each Note Party’s premises a custodian who shall have full authority to do all acts necessary to protect Agent’s interests in the Collateral; (c) upon the occurrence and during the continuance of an Event of Default, may lease warehouse facilities to which Agent may reasonably requestmove all or part of the Collateral; (d) upon the occurrence and during the continuance of an Event of Default, in forms satisfactory to Newcomay use any Note Party’s owned or leased lifts, hoists, trucks and other facilities or equipment for handling or removing the Collateral; and (e) shall have, and take all further action that Newco or is hereby granted, a right of ingress and egress to the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in places where the Collateral granted by Company is located, and may proceed over and through any of Note Parties’ owned or leased property, subject to Newco, to create and perfect a second-priority security interest in the assets rights of the landlords of any Subsidiaries leased Real Property. Subject to the other provisions of Company provided in Section 4.2 hereofthis Agreement regarding Note Parties’ maintenance of Collateral, or otherwise each Note Party shall cooperate with all of Agent’s efforts to protect and preserve the Collateral and Newco's security interest therein. Should Company fail will take such actions to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with preserve the Collateral as Newco are necessary or as the Agent may reasonably requestdirect in its Permitted Discretion. Subject to Section 16.9, all in reasonable detail.
(c) Company shall notify Newcoof Agent’s and Noteholders’ expenses of preserving the Collateral, within thirty (30) days after the occurrence thereof, of the acquisition of including any property by Company that is not subject expenses relating to the existing liens and security interestsbonding of a custodian, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except shall be added to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualObligations.
Appears in 1 contract
Sources: Second Lien Note Purchase Agreement (Emerge Energy Services LP)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company shall execute and deliver to Newco, and shall, except Notwithstanding anything to the extent prohibited contrary herein, if an Event of Default shall have occurred and be continuing when any of the Notes are Outstanding, the Trustee and the Note Administrator, as applicable, shall (except as otherwise expressly permitted or required under this Indenture) retain the Collateral, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Notes in accordance with the Priority of Payments and the provisions of Articles 10, 12 and 13 and shall not sell or liquidate the Collateral, unless either:
(i) the Note Administrator, pursuant to Section 5.5(c), determines (based upon information delivered to it in accordance with this Indenture) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full the amounts then due and unpaid on the Notes, Company Administrative Expenses due and payable pursuant to the Priority of Payments, the Collateral Manager Fees due and payable pursuant to the Priority of Payments and amounts due and payable to the Advancing Agent, the Backup Advancing Agent and the Trustee in respect of unreimbursed Interest Advances and Reimbursement Interest, for principal and interest (including accrued and unpaid Deferred Interest), and, upon receipt of information from Persons to whom fees are expenses are payable, all other amounts payable prior to payment of principal on the Notes due and payable pursuant to Section 11.1(a)(iii) and the holders of a Majority of the Controlling Class agrees with such determination; or
(ii) a Supermajority of each Class of Notes (each voting as a separate Class) directs the sale and liquidation of all or a portion of the Collateral. In the event of a sale of all or a portion of the Collateral pursuant to clause (ii) above, the Special Servicer on behalf of the Trustee shall sell that portion of the Collateral identified by the Nationwide Debt Agreementrequisite Noteholders and all proceeds of such sale shall be remitted to the Note Administrator for distribution in the order set forth in Section 11.1(a). The Note Administrator shall give written notice of the retention of the Collateral by the Custodian to the Issuer, execute the Co-Issuer, the Collateral Manager, the Trustee, the Servicer, the Special Servicer and deliver or cause the Rating Agencies. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time to time statements and schedules further identifying and describing require a sale of the Collateral and such other reports securing the Offered Notes if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Trustee to preserve the Collateral as Newco may reasonably request, all in reasonable detailsecuring the Offered Notes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, the Collateral Manager shall notify Newcoobtain bid prices with respect to each Collateral Interest from two dealers (Independent of the Collateral Manager and any of its Affiliates) at the time making a market in such Collateral Interests that, within thirty at that time, engage in the trading, origination or securitization of whole loans or interests therein similar to the Collateral Interests (30) days after or, if only one such dealer can be engaged, then the occurrence Collateral Manager shall obtain a bid price from such dealer or, if no such dealer can be engaged, from a pricing service). The Collateral Manager shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Collateral Interest and provide the Trustee and the Note Administrator with the results thereof. For the purposes of determining issues relating to the market value of any Collateral Interest and the execution of a sale or other liquidation thereof, the Collateral Manager may, but need not, retain at the expense of the acquisition Issuer and rely on an opinion of an Independent investment banking firm of national reputation or other appropriate advisors (the cost of which shall be payable as a Company Administrative Expense) in connection with a determination as to whether the condition specified in Section 5.5(a)(i) exists. The Note Administrator shall promptly deliver to the Noteholders, the Servicer, the Special Servicer and the Collateral Manager, and the Note Administrator shall post to the Note Administrator’s Website, a report stating the results of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral determination required to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualmade pursuant to Section 5.5(a)(i).
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver be continuing when any Class of Rated Notes is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make all payments and deposits and maintain all accounts in respect of the Collateral, the Rated Notes and any Hedge Agreement in accordance with Section 11.1 and the provisions of Articles 10, 12 and 13 unless:
(1) the Trustee, pursuant to NewcoSection 5.5(c), determines (such determinations may be based upon a certificate from the Collateral Manager) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting reasonable expenses relating to such sale or liquidation) would be sufficient to discharge in full the Redemption Prices then due on the Rated Notes (including the Class A-R Commitment Fees, Class A-R Increased Costs and shallClass A-R Breakage Costs), except any amounts required to be paid under any Hedge Agreement, all unreimbursed Interest Advances together with interest thereon, all unreimbursed Cure Advances, all unpaid Administrative Expenses and any accrued and unpaid Senior Collateral Management Fee (to the extent prohibited not waived by the Nationwide Debt AgreementCollateral Manager) and the Controlling Party agrees with such determination; or
(2) in the case of an Event of Default described in clauses (a), execute (b), (g), (h) or (i) in the definition thereof, the Controlling Party (and, unless it will be paid in full all amounts owing to it by the Issuer, the Initial Hedge Counterparty), subject to the provisions hereof, and deliver subject to the Trustee determining that such action will not involve the Trustee incurring any liability, (unless the Trustee is indemnified to its satisfaction against any such liability) direct the sale and liquidation of the Collateral. For purposes of Section 5.5(a)(2), if the Initial Hedge Counterparty shall fail to vote to direct the sale and liquidation of the Collateral within three Business Days after written notice from the Issuer or cause the Trustee requesting a vote pursuant to such Section 5.5(a)(2), the Initial Hedge Counterparty shall not be entitled to participate in the vote requested by such notice. The Trustee shall give written notice of the retention of the Collateral to the Issuer with a copy to the Co-Issuer, each Holder of the Rated Notes and the Initial Hedge Counterparty. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause Section 5.5(a)(1) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"2) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral and such other reports in connection with securing the Collateral as Newco may reasonably request, all in reasonable detailIndenture Issued Notes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(1) exists, the Trustee shall notify Newcoobtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers (or if it is unable in good faith to obtain such bid prices from two nationally recognized dealers, one nationally recognized dealer), as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security. In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(1) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation. The Trustee shall deliver to the Noteholders, each Hedge Counterparty, the Rating Agencies and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(1) no later than ten (10) days after making such determination but in any event prior to the sale or liquidation of the Collateral. The Trustee shall make the determinations required by Section 5.5(a)(1) within thirty (30) days after an Event of Default and at the occurrence thereof, request of the acquisition Controlling Party at any time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(1). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(1), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Controlling Party or the Holders of the requisite percentage of any property by Company that Class of Rated Notes have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Rated Note of a Class or Income Notes who is not subject to the existing liens and security interests, in favor also a Holder of Newco, Rated Notes of another Class or of Income Notes or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Rated Note and/or Income Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Rated Note is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Rated Notes in accordance with Section 11.1 and the provisions of Section 10 and Section 12 unless a Majority of the Income Noteholders direct the sale and liquidation of the Collateral.
(e) If an Event of Default occurs and is continuing and prior to the Mandatory Class A-R Draw Date, no Class A-R Draw may be made except with respect to Class A-R Draws to be applied to fund Future Advance Amounts related to Future Funding Assets; provided, however, if an Event of Default specified in clauses Sections 5.1(d), (g) or (h) above occurs, the undrawn Class A-R Commitments will terminate automatically without need for further action.
(f) On the Mandatory Class A-R Draw Date, the Issuer (or the Collateral Manager on behalf of the Issuer) will draw on the Class A-R Notes, in an amount equal to the lesser of (x) the Aggregate Class A-R Undrawn Amount and (y) the Total Net Future Unfunded Amount, and will deposit such amount into the Future Funding Asset Account in accordance with Section 17.1(c). Immediately following such draw, the Class A-R Commitments will terminate. The amounts on deposit in the Future Funding Asset Account may only be applied to fund Future Advance Amounts or on the date on which the Notes are redeemed in full, shall be transferred to the Collateral Principal Collection sub-account of the Collection Account and distributed pursuant to the Priority of Payments; provided, that to the extent prohibited by that the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved amounts then on deposit in the same conditionFuture Funding Asset Account exceed the Total Unfunded Future Advance Amount, repair and working order the Collateral Manager may direct the Trustee to transfer such excess to the Collection Account as when new, ordinary wear and tear excepted, and Collateral Principal Collections in accordance with any manufacturer's manualthe Priority of Payments.
Appears in 1 contract
Sources: Indenture (Northstar Realty)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver be continuing when any Class of Notes is Outstanding (and the Commitment Period Termination Date has not occurred), the Trustee shall retain the Collateral securing the Notes and the Treasury Strip Collateral securing the Class P-1 Combination Securities, the Class P-2 Combination Securities and the Class P-3 Combination Securities intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral securing the Notes and the Treasury Strip Collateral securing the Class P-1 Combination Securities, the Class P-2 Combination Securities and the Class P-3 Combination Securities in accordance with the Priority of Payments and the provisions of Sections 10, 12 and 13 unless:
(i) the Trustee determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to Newcodischarge in full the amounts then due and unpaid on the Notes for principal, interest (including Class C Deferred Interest, Class D Deferred Interest, Class E Deferred Interest, Class F Deferred Interest, Defaulted Interest and shallinterest on Defaulted Interest, except if any), Commitment Fee due and unpaid administrative expenses as limited by clause (2) of Section 11.1(a)(i) and any accrued and unpaid Hedge Payment Amounts payable by the Issuer pursuant to the extent prohibited Hedge Agreements, including termination payments (assuming, for this purpose, that each Hedge Agreement has been terminated by reason of an event of default or termination with respect to the Nationwide Debt AgreementIssuer); or
(ii) if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of each Class of Notes voting as a separate Class direct, execute subject to the provisions hereof, the sale and deliver liquidation of the Collateral. The Trustee shall give written notice of the retention of the Collateral or cause the Treasury Strip Collateral to the Issuer, with a copy to the Co-Issuer, the Hedge Counterparty and the Collateral Manager. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral securing the Notes and such other reports in connection with the Treasury Strip Collateral as Newco may reasonably requestsecuring the Class P-1 Combination Securities, all in reasonable detailthe Class P-2 Combination Securities and the Class P-3 Combination Securities if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(i) exists, (i) the Trustee shall notify Newcoobtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers, within thirty as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager and its Affiliates, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security and (30ii) such condition will be deemed not to exist if the Holders of at least 66-2/3% in Aggregate Outstanding Principal Amount of the Controlling Class give notice to the Trustee to the effect that the Trustee has not followed the procedures set forth in this Indenture in making the relevant determinations required pursuant to Section 5.5(a)(i). For the purposes of making the determinations required pursuant to Section 5.5(a)(i), the Trustee shall apply the standards set forth in Section 9.1(b). In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(i) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation. The Trustee shall deliver to the Noteholders, the Collateral Manager, the Hedge Counterparty and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(i) no later than 10 days after making such determination. The Trustee shall make the occurrence thereof, determinations required by Section 5.5(a)(i) within 30 days after an Event of Default and at the request of a Majority of the acquisition Controlling Class at any time during which the Trustee retains the Collateral or Treasury Strip Collateral pursuant to Section 5.5(a)(i). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(i), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite Aggregate Outstanding Principal Amount of any property by Company that Class of Notes have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Note of a Class who is not subject to the existing liens and security interests, in favor also a Holder of Newco, Notes of another Class or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Note is Outstanding (and the Commitment Period Termination Date has occurred), except to the extent prohibited by Trustee shall retain the Nationwide Debt AgreementCollateral securing the Notes intact, collect and cause each Subsidiary to cause the collection of the proceeds thereof and make and apply all tangible payments and deposits and maintain all accounts in respect of the Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and Notes in accordance with any manufacturer's manualthe Priority of Payments and the provisions of Section 10 and Section 12 unless a Majority-in-Interest of Preferred Shareholders direct the sale and liquidation of the Collateral.
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver be continuing when any Class of Rated Notes is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make all payments and deposits and maintain all accounts in respect of the Collateral, the Rated Notes and any Hedge Agreement in accordance with Section 11.1 and the provisions of Sections 10, 12 and 13 unless:
(1) the Trustee, pursuant to NewcoSection 5.5(c), determines (such determinations may be based upon a certificate from the Collateral Manager) that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting reasonable expenses relating to such sale or liquidation) would be sufficient to discharge in full the Redemption Prices then due on the Rated Notes (including the Class A-R Commitment Fees and shallClass A-R Breakage Costs), except any amounts required to be paid under any Hedge Agreement, all unreimbursed Interest Advances together with interest thereon, all unpaid Administrative Expenses and any accrued and unpaid Senior Collateral Management Fee (to the extent prohibited not waived by the Nationwide Debt AgreementCollateral Manager) and the Holders of a Majority of the then Aggregate Outstanding Amount of Rated Notes agrees with such determination; or
(2) the Holders of at least 662/3% of the Aggregate Outstanding Amount of the Rated Notes (and, execute unless it will be paid in full all amounts owing to it by the Issuer, the Initial Hedge Counterparty), subject to the provisions hereof, and deliver subject to the Trustee determining that such action will not involve the Trustee incurring any liability, (unless the Trustee is indemnified to its satisfaction against any such liability) direct the sale and liquidation of the Collateral. For purposes of Section 5.5(a)(2), if the Initial Hedge Counterparty shall fail to vote to direct the sale and liquidation of the Collateral within three Business Days after written notice from the Issuer or cause the Trustee requesting a vote pursuant to such Section 5.5(a)(2), the Initial Hedge Counterparty shall not be entitled to participate in the vote requested by such notice. The Trustee shall give written notice of the retention of the Collateral to the Issuer with a copy to the Co-Issuer, each Holder of the Rated Notes and the Initial Hedge Counterparty. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause Section 5.5(a)(1) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"2) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentexist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time require the Trustee to time statements and schedules further identifying and describing preserve the Collateral and such other reports in connection with securing the Collateral as Newco may reasonably request, all in reasonable detailIndenture Issued Notes if prohibited by applicable law.
(c) Company In determining whether the condition specified in Section 5.5(a)(1) exists, the Trustee shall notify Newcoobtain bid prices with respect to each security contained in the Collateral from two nationally recognized dealers (or if it is unable in good faith to obtain such bid prices from two nationally recognized dealers, one nationally recognized dealer), as specified by the Collateral Manager in writing, which are Independent from each other and the Collateral Manager, at the time making a market in such securities and shall compute the anticipated proceeds of sale or liquidation on the basis of the lower of such bid prices for each such security. In addition, for the purposes of determining issues relating to the execution of a sale or liquidation of the Pledged Securities and the execution of a sale or other liquidation thereof in connection with a determination whether the condition specified in Section 5.5(a)(1) exists, the Trustee may retain and rely on an opinion of an Independent investment banking firm of national reputation. The Trustee shall deliver to the Noteholders, each Hedge Counterparty, the Rating Agencies and the Co-Issuers a report stating the results of any determination required pursuant to Section 5.5(a)(1) no later than ten (10) days after making such determination but in any event prior to the sale or liquidation of the Collateral. The Trustee shall make the determinations required by Section 5.5(a)(1) within thirty (30) days after an Event of Default and at the occurrence thereof, request of the acquisition Holders of a Majority of the then Aggregate Outstanding Amount of the Notes of the Controlling Class at any time during which the Trustee retains the Collateral pursuant to Section 5.5(a)(1). In the case of each calculation made by the Trustee pursuant to Section 5.5(a)(1), the Trustee shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Trustee and certifying their conformity to the requirements of this Indenture. In determining whether the Holders of the requisite percentage of any property by Company that Class of Rated Notes or the requisite percentage of Income Noteholders have given any direction or notice or have agreed pursuant to Section 5.5(a), any Holder of a Rated Note of a Class or Income Notes who is not subject to the existing liens and security interests, in favor also a Holder of Newco, Rated Notes of another Class or of Income Notes or any Affiliate of any person or entity's becoming such Holder shall be counted as a Subsidiary, and Holder of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcoeach such Rated Note and/or Income Note for all purposes.
(d) Company shallIf an Event of Default shall have occurred and be continuing at a time when no Rated Note is Outstanding, the Trustee shall retain the Collateral securing the Indenture Issued Notes and any Hedge Agreement intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Rated Notes in accordance with Section 11.1 and the provisions of Section 10 and Section 12 unless a Majority of the Income Noteholders direct the sale and liquidation of the Collateral.
(e) If an Event of Default occurs and is continuing and prior to the Mandatory Class A-R Draw Date, no Class A-R Draw may be made except with respect to Class A-R Draws to be applied to fund Future Advance Amounts related to Earn-Out Assets; provided, however, if an Event of Default specified in clauses Sections 5.1(d), (f) or (g) above occurs, the undrawn Class A-R Commitments will terminate automatically without need for further action after the Class A-R Draw on the related Mandatory Class A-R Draw Date.
(f) On the Mandatory Class A-R Draw Date, which will occur if the Notes are accelerated following an Event of Default, the Issuer (or the Collateral Manager on behalf of the Issuer) will draw on the Class A-R Notes, in an amount equal to the Aggregate Class A-R Undrawn Amount, and will deposit such amount into the Earn-Out Asset Account and/or Collection Account in accordance with Section 17.1(c). Immediately following such draw, the Class A-R Commitments will terminate. The amounts on deposit in the Earn-Out Asset Account may only be applied to fund Future Advance Amounts or on the date on which the Notes are redeemed in full, shall be transferred to the Collateral Principal Collection sub-account of the Collection Account and distributed pursuant to the Priority of Payments; provided, that to the extent prohibited by that the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved amounts then on deposit in the same conditionEarn-Out Asset Account exceed the Total Unfunded Future Advance Amount, repair and working order the Collateral Manager may direct the Trustee to transfer such excess to the Collection Account as when new, ordinary wear and tear excepted, and Collateral Principal Collections in accordance with any manufacturer's manualthe Priority of Payments.
Appears in 1 contract
Sources: Indenture (Northstar Realty)
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) the Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of the Company to execute and deliver to Newco at any time or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by the Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by the Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of the Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should the Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as the Company 's agent.
(b) the Company will furnish to Newco from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as Newco may reasonably request, all in reasonable detail.
(c) the Company shall notify Newco, within thirty (30) days after the occurrence thereof, of the acquisition of any property by the Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) the Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manual.
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company If an Event of Default shall execute have occurred and deliver to Newcobe continuing, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco at any time or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to NewcoAgent shall hold the Collateral securing the Secured Obligations intact, to create collect and perfect a second-priority security interest cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in the assets respect of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail the Secured Obligations in accordance with the Priority of Payments or the Priority of Acceleration Payments, as applicable, and Article 3 hereof and the provisions of Articles 2 and Section 3.1 of the Intercreditor Agreement and shall not foreclose on or dispose of the Collateral unless:
(i) the Collateral Agent determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to do so after receipt discharge in full the amounts then due and unpaid in respect of five the Secured Obligations and the Required Lenders agree with such determination; or
(5ii) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentthe Required Lenders direct the sale and liquidation of the Collateral.
(b) Company will furnish Nothing contained in Section 5.2(a) shall be construed to Newco from time to time statements and schedules further identifying and describing require the Collateral and such other reports in connection with Agent to preserve the Collateral as Newco may reasonably request, all in reasonable detailsecuring the Secured Obligations if prohibited by applicable law.
(c) Company The Collateral Agent shall notify Newco, within thirty (30deliver to each Representative and the Issuers a report stating the results of any determination required pursuant to Section 5.2(a)(i) no later than 10 days after making such determination but in any case after such sale. The Collateral Agent shall make the occurrence thereof, determinations required by Section 5.2(a)(i) within 90 days after an Event of Default and at the request of the acquisition Required Lenders at any time during which the Collateral Agent retains the Collateral pursuant to Section 5.2(a)(i). In the case of any property each calculation made by Company that is not subject the Collateral Agent pursuant to Section 5.2(a)(i), the Collateral Agent shall obtain a letter of an Independent certified public accountant confirming the accuracy of the computations of the Collateral Agent and certifying their conformity to the existing liens and security interests, in favor requirements of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newcothis Agreement.
(d) Company shallIn determining whether the condition specified in Section 5.2(a)(i) exists, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained Agent may retain and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualrely on an opinion of an Independent investment banking firm of national reputation.
Appears in 1 contract
Preservation of Collateral. and Perfection of Security Interests --------------------------------------------------------------- Therein. -------
(a) Company Notwithstanding anything to the contrary herein, if an Event of Default shall execute have occurred and deliver be continuing when any of the Debt is Outstanding, the Collateral Agent, Loan Agent and the Note Administrator, as applicable, shall (except as otherwise expressly permitted or required under this Indenture and Credit Agreement) retain the Collateral securing the Debt intact, collect and cause the collection of the proceeds thereof and make and apply all payments and deposits and maintain all accounts in respect of the Collateral and the Debt in accordance with the Priority of Payments and the provisions of Article 10, Article 12 and Article 13 and shall not sell or liquidate the Collateral, unless either:
(i) (A) the Collateral Agent, pursuant to NewcoSection 5.5(c), determines that the anticipated proceeds of a sale or liquidation of the Collateral (after deducting the reasonable expenses of such sale or liquidation) would be sufficient to discharge in full (1) the amounts then due and unpaid on the Debt for principal and interest, and shall(2) upon receipt of information from Persons to whom fees and expenses are payable, except all other amounts payable prior to payment of principal of the Debt due and payable pursuant to Section 11.1(a)(iv) or due and payable to the extent prohibited Servicer under the Servicing Agreement in respect of which funds have not been withdrawn from the Collection Account pursuant to the Servicing Agreement, including, without limitation, any liquidation and other fees and other compensation payable under the Servicing Agreement, and (B) the Majority of the Controlling Class agrees with such determination; or
(ii) the Majority of the Controlling Class direct the sale and liquidation of all or a portion of the Collateral. In the event of a sale of all or a portion of the Collateral pursuant to clause (ii) above, the Collateral Agent shall sell those Collateral identified by the Nationwide Debt AgreementMajority of the Controlling Class pursuant to a written direction in form and substance satisfactory to the Collateral Agent, execute and deliver all proceeds of such sale shall be remitted to the Note Administrator or cause Loan Agent for distribution in the order set forth in Section 11.1(a)(iv). The Collateral Agent shall give written notice of the retention of the Collateral by the Collateral Agent to the Issuer, the Trustee, the Loan Agent and the Servicer. So long as such Event of Default is continuing, any Subsidiary of Company such retention pursuant to execute and deliver to Newco this Section 5.5(a) may be rescinded at any time when the conditions specified in clause (i) or times hereafter at the request of Newco or the Agent (as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments"ii) (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably request, in forms satisfactory to Newco, and take all further action that Newco or the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in the Collateral granted by Company to Newco, to create and perfect a second-priority security interest in the assets of any Subsidiaries of Company provided in Section 4.2 hereof, or otherwise to protect and preserve the Collateral and Newco's security interest therein. Should Company fail to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agentabove exist.
(b) Company will furnish Nothing contained in Section 5.5(a) shall be construed to Newco from time to time statements and schedules further identifying and describing require a sale of the Collateral and such other reports securing the Class A Loan if the conditions set forth in connection with Section 5.5(a) are not satisfied. Nothing contained in Section 5.5(a) shall be construed to require the Collateral as Newco may reasonably request, all in reasonable detailAgent to preserve the Collateral securing the Class A Loan if prohibited by applicable law.
(c) Company In assisting the Collateral Agent to determine whether the condition specified in Section 5.5(a)(i) exists, the Class A Lender shall notify Newcoobtain bid prices with respect to each Mortgage Asset from two (2) dealers that, within thirty at that time, engage in the trading, origination or securitization of whole mortgage loans similar to the Mortgage Assets (30) days after or, if only one such dealer can be engaged, then the occurrence Class A Lender shall obtain a bid price from such dealer or, if no such dealer can be engaged, from a pricing service). The Class A Lender shall compute the anticipated proceeds of sale or liquidation on the basis of the lowest of such bid prices for each such Mortgage Asset and provide the Collateral Agent, the Trustee, the Loan Agent and the Note Administrator with the results thereof. For the purposes of determining issues relating to the market value of any Mortgage Asset and the execution of a sale or other liquidation thereof, the Class A Lender may, but need not, retain at the expense of the acquisition Issuer and rely on an opinion of an Independent investment banking firm of national reputation or other appropriate advisors (the cost of which shall be payable as an Issuer Administrative Expense). The Collateral Agent shall promptly deliver to the Debtholders a report stating the results of any property by Company that is not subject to the existing liens and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral determination required to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualmade pursuant to Section 5.5(a)(i).
Appears in 1 contract
Sources: Indenture and Credit Agreement (Granite Point Mortgage Trust Inc.)
Preservation of Collateral. Each Borrower will safeguard and Perfection of Security Interests --------------------------------------------------------------- Thereinprotect all Collateral for Agent’s general account. -------
In addition to the rights and remedies set forth in Section 11.1 hereof, Agent: (a) Company shall execute and deliver to Newco, and shall, except to the extent prohibited by the Nationwide Debt Agreement, execute and deliver or cause any Subsidiary of Company to execute and deliver to Newco may at any time or times hereafter at take such steps as Agent deems necessary in the request exercise of Newco its Permitted Discretion to protect Agent’s interest in and to preserve the Collateral, including after the occurrence and during the continuance of an Event of Default, the hiring of such security guards or the Agent (placing of other security protection measures as defined in Section 4.4 below), all financing statements or other documents, including real estate deeds to secure on debt on real estate owned by Company or its Subsidiaries and Subsidiary security agreements (the "Security Instruments") (and pay the cost of filing or recording the same in all public offices deemed reasonably necessary by Newco), as Newco or the Agent may reasonably requestdeem appropriate; (b) after the occurrence and during the continuance of an Event of Default, may employ and maintain at any of each Borrower’s premises a custodian who shall have full authority to do all acts necessary to protect Agent’s interests in forms satisfactory the Collateral; (c) after the occurrence and during the continuance of a Default or Event of Default, may lease warehouse facilities to Newcowhich Agent may move all or part of the Collateral; (d) after the occurrence and during the continuance of an Event of Default, may use any Borrower’s owned or leased lifts, hoists, trucks and other facilities or equipment for handling or removing the Collateral; and (e) subject to Section 4.10 hereof, shall have, and take all further action that Newco or is hereby granted, a right of ingress and egress to the Agent may request, or which may be reasonably necessary or desirable, to perfect and keep perfected a second-priority security interest in places where the Collateral granted by Company is located, and may proceed over and through any of Borrowers’ owned or leased property, subject to Newco, to create and perfect a second-priority security interest in the assets rights of the landlords of any Subsidiaries leased Real Property and, if applicable, the terms of Company provided in Section 4.2 hereofany applicable Lien Waiver Agreement. Subject to the other provisions of this Agreement regarding Borrowers’ maintenance of Collateral, or otherwise each Borrower shall cooperate with all of Agent’s efforts to protect and preserve the Collateral and Newco's security interest therein. Should Company fail will take such actions to do so after receipt of five (5) business days' notice in writing, Newco is authorized to sign any such Security Instruments as Company 's agent.
(b) Company will furnish to Newco from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with preserve the Collateral as Newco Agent may reasonably requestdirect in its Permitted Discretion. Subject to Section 16.9 and Section 6.19, all in of Agent’s reasonable detail.
(c) Company shall notify Newcoout-of-pocket expenses of preserving the Collateral, within thirty (30) days after the occurrence thereof, of the acquisition of including any property by Company that is not subject such expenses relating to the existing liens bonding of a custodian, shall be charged to Borrowers’ Account or Sand Tiger’s Account, as applicable, as a Revolving Advance maintained as a Domestic Rate Loan and security interests, in favor of Newco, of any person or entity's becoming a Subsidiary, and of any other event or condition that may require additional action of any nature in order to create, preserve, or perfect the liens and security interests of Newco.
(d) Company shall, except added to the extent prohibited by the Nationwide Debt Agreement, cause each Subsidiary to cause all tangible Collateral to be maintained and preserved in the same condition, repair and working order as when new, ordinary wear and tear excepted, and in accordance with any manufacturer's manualObligations.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Mammoth Energy Services, Inc.)