Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent. (b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. (c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 4 contracts
Sources: Credit Agreement, Credit Agreement (Rice Energy Inc.), Credit Agreement (Rice Midstream Partners LP)
Additional Collateral; Additional Guarantors. At the Borrower’ expense, subject to the terms, conditions and provisions of the Collateral and Guarantee Requirement, and any applicable limitation in the Agreed Security Principles and any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent and/or the Mexican Collateral Agent, as applicable, to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon the acquisition of any new direct or indirect Material Subsidiary (iin each case, other than an Excluded Subsidiary) Within thirty by any Loan Party (30) other than Holdings), within 45 days (after such formation or acquisition, or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in writing in its sole discretion, take and cause such Material Subsidiary to duly execute and deliver to the Administrative Agent a joinder to this Agreement to become a Guarantor;
(b) Within 45 days after the date by which a Compliance Certificate is required to be delivered pursuant to Section 6.02 (or such longer period as the Administrative Agent may in each case agree in writing in its discretion) cause any direct or indirect Subsidiary (other than an Excluded Subsidiary) of the Borrower that has become a Material Subsidiary during the period covered by such Compliance Certificate pursuant to clause (b) of the definition of “Material Subsidiary”, take and cause such Material Subsidiary to duly execute and deliver to the Administrative Agent a joinder to this Agreement to become a Guarantor;
(c) [Reserved];
(d) Not later than 90 days (or such longer period as the Administrative Agent may agree in writing in its discretion) after (Ai) the consummation any Hotel Real Property is acquired by any Credit Party a direct or indirect Subsidiary of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired(other than a Non-Recourse Subsidiary) as after the Closing Date or (ii) an entity is acquired by a result direct or indirect Subsidiary of the Borrower and such entity owns a Hotel Real Property at the time of such Material Acquisition or during such periodacquisition (in each case, as applicablea “Hotel Acquisition”), and if (and only if) immediately after giving effect to execute any such acquisition (x) the Consolidated Secured Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is more than 3.50:1.00 (as of the last day of the most recently ended Test Period) or (y) the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is more than 4.25:1.00 (as of the last day of the most recently ended Test Period) (clauses (x) and deliver mortgages or other applicable Security Instruments on (y), collectively, the “Ratio Mortgage Requirement”), cause such Midstream Properties, Deeds and/or Rights of Way Hotel Property to be subject to a Mortgage in favor of the Administrative Agent or, as the case may be, the Mexican Collateral Agent, in each case for the benefit of the Secured Parties, and take, or cause the relevant Subsidiary to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or, as applicable, the Mexican Collateral Agent, to grant and perfect or record such Lien, in form each case to the extent required by, and substance satisfactory subject to the limitations and exceptions of, the Collateral and Guarantee Requirement and the Agreed Security Principles and to otherwise comply with the requirements thereof; it being understood and agreed that the cost-benefit analysis referred to in section 1(b) of the Agreed Security Principles shall apply to the granting and/or perfection of a Mortgage pursuant to this Section 6.11(d); provided, that if, immediately after giving effect to any such acquisition, the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is greater than 5.00:1.00, the cost-benefit analysis referred to in section 1(b) of the Agreed Security Principles shall not apply to the granting and/or perfection of a Mortgage pursuant to this Section 6.11(d) (which granting and perfection shall be required in any case irrespective of the amount of the recordation costs, notarial fees and/or other costs associated therewith); provided further that nothing in this Section 6.11(d) shall prevent the Administrative Agent from limiting or revising the requirements applicable to the granting and/or perfection of any Mortgage, as it may deem appropriate (in its sole discretion) in order to reduce the recordation costs, notarial fees and/or other costs associated therewith, including by limiting the amount of Indebtedness secured by such Mortgage;
(e) At the time that any Mortgage is granted pursuant to Section 6.11(d) (or such longer period as the Administrative Agent may agree in writing in its discretion), take and cause any direct or indirect Subsidiary of the Borrower (other than a Non-Recourse Subsidiary), if (and only if) the corresponding Ratio Mortgage Requirement is met, to take whatever action as may be necessary or reasonably requested by the Administrative Agent to comply, as regards all tangible and intangible assets of the entity owning the Hotel Real Property subject to that Hotel Acquisition and subject to the limitations and exceptions of the Agreed Security Principles, with the requirements set forth in clause (e) of the definition of “Collateral and Guarantee Requirement”;
(f) Not later than 90 days (of such longer period as the Administrative Agent may agree in writing in its discretion) after the date on which a Hotel Acquisition is consummated, take and cause any direct or indirect Subsidiary of the Borrower (other than a Non-Recourse Subsidiary), if (and only if) the corresponding Ratio Mortgage Requirement is met, to take whatever action as may be necessary or reasonably requested by the Administrative Agent to comply, with respect to the Hotel Real Property subject to such Hotel Acquisition, with the requirements as regards security interest in Equity Interests set forth in clause (c) of the definition of “Collateral and Guarantee Requirement”;
(g) If reasonably requested by the Administrative Agent or the Mexican Collateral Agent, as applicable, within 45 days after such request (or such longer period as the Administrative Agent may agree in writing in its discretion), deliver to the Administrative Agent and, if applicable, the Mexican Collateral Agent a signed copy of an opinion, addressed to the Administrative Agent., the Lenders and, if applicable, the Mexican Collateral Agent , of counsel for the Loan Parties reasonably acceptable to the Administrative Agent or, as applicable, the Mexican Collateral Agent, as to such customary matters set forth in this Section 6.11 as it may reasonably request; and
(bh) The Parent and the Borrower shall As promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days as reasonably practicable after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested request therefor by the Administrative Agent or, as applicable, the Mexican Collateral Agent.
(c) Notwithstanding anything , deliver to the contrary contained hereinAdministrative Agent and, if relevant, the Mexican Collateral Agent with respect to any real propertyMortgaged Property added to the Collateral pursuant to this Section 6.11, if any existing title reports or abstracts, to the Administrative Agent reasonably determines that extent available and in the costspossession or control of a Loan Party. Notwithstanding anything herein to the contrary, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements no Mortgage in the United States shall be recorded with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien Mortgaged Property pursuant to the Security Instruments, foregoing or the Collateral and Guarantee Requirement until each Lender expressly requesting flood due diligence has received written notice of such real property shall not be Mortgage at least 45 days prior to such recording and each such Lender has confirmed satisfactory completion of flood due diligence and flood insurance compliance procedures in respect of Flood Insurance Laws or as otherwise required to become subject to a Lien pursuant to by the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 2 contracts
Sources: Credit Agreement (Playa Hotels & Resorts N.V.), Restatement Agreement (Playa Hotels & Resorts N.V.)
Additional Collateral; Additional Guarantors. At its sole expense, take all action necessary or reasonably requested by the Collateral Agent to ensure that (a) (i) Within within thirty (30) days days, or such longer period as the Collateral Agent may agree in writing, after the formation or acquisition of any new direct or indirect wholly-owned Subsidiary by any Obligor: (i) cause such wholly-owned Subsidiary to duly execute and deliver to the Collateral Agent, a joinder to this Agreement in the form attached hereto as Exhibit E to become a Guarantor, and (iii) take and cause such Subsidiary to take whatever action as may be reasonably necessary in the reasonable opinion of the Collateral Agent to vest in the Collateral Agent valid and perfected Liens with respect to the assets of such Subsidiary that would have been subject to such a Lien under this Agreement or the Security Documents on the Closing Date had such Subsidiary been an Obligor on the Closing Date, and (b) with respect to any property constituting the Collateral acquired after the Closing Date by any Obligor as to which the Collateral Agent, for the benefit of the Note Purchasers, does not have a perfected Lien, promptly (but in any event within thirty (30) Business Days (or such longer period not to exceed ninety (90) days as the Administrative Collateral Agent may agree in its sole discretionwriting) after such acquisition: (Ai) execute and deliver to the consummation by Collateral Agent such documents (including financing statements, any Credit Party control agreement or account pledge agreement or any joinders or supplements to any Security Documents) as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the ratable benefit of the Note Purchasers, a Material Acquisition perfected security interest and Lien in such property on a first priority basis (other than any acquisition Permitted Liens arising by operation of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received law or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” expressly permitted under the Guaranty and Collateral this Agreement), and (ii) Domestic Subsidiarytake all actions as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the ratable benefit of the Note Purchasers, a perfected security interest and Lien in such property on a first priority basis (other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral any Permitted Liens arising by operation of law or otherwise expressly permitted under this Agreement). In connection with Notwithstanding the foregoing, the Parent shall, or no action shall cause such Domestic Subsidiary to, promptly, but be required under this Section 6.12 (x) in respect of any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as Person that is not required to become a Restricted Guarantor Subsidiary pursuant to the terms hereofproviso set forth in the definition thereof or (y) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of extent expressly excluded from being required under the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed proviso in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative AgentSection 4.2.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 2 contracts
Sources: Note Purchase and Guaranty Agreement (Next.e.GO B.V.), Note Purchase and Guaranty Agreement (Athena Consumer Acquisition Corp.)
Additional Collateral; Additional Guarantors. At the Borrower’s expense, subject to the terms, conditions and provisions of the Collateral and Guarantee Requirement, and any applicable limitation in the Agreed Security Principles and any Collateral Document, take all action necessary or reasonably requested by the Administrative Agent and/or the Mexican Collateral Agent, as applicable, to ensure that the Collateral and Guarantee Requirement continues to be satisfied, including:
(a) Upon the acquisition of any new direct or indirect Material Subsidiary (iin each case, other than an Excluded Subsidiary) Within thirty by any Loan Party (30) other than Holdings), within 45 days (after such formation or acquisition, or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in writing in its sole discretion, take and cause such Material Subsidiary to duly execute and deliver to the Administrative Agent a joinder to this Agreement to become a Guarantor;
(b) Within 45 days after the date by which a Compliance Certificate is required to be delivered pursuant to Section 6.02 (or such longer period as the Administrative Agent may in each case agree in writing in its discretion) cause any direct or indirect Subsidiary (other than an Excluded Subsidiary) of the Borrower that has become a Material Subsidiary during the period covered by such Compliance Certificate pursuant to clause (b) of the definition of “Material Subsidiary”, take and cause such Material Subsidiary to duly execute and deliver to the Administrative Agent a joinder to this Agreement to become a Guarantor;
(c) [Reserved];
(d) Not later than 90 days (or such longer period as the Administrative Agent may agree in writing in its discretion) after (Ai) the consummation any Hotel Real Property is acquired by any Credit Party a direct or indirect Subsidiary of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired(other than a Non-Recourse Subsidiary) as after the Closing Date or (ii) an entity is acquired by a result direct or indirect Subsidiary of the Borrower and such entity owns a Hotel Real Property at the time of such Material Acquisition or during such periodacquisition (in each case, as applicablea “Hotel Acquisition”), and if (and only if) immediately after giving effect to execute any such acquisition (x) the Consolidated Secured Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is more than 3.50:1.00 (as of the last day of the most recently ended Test Period) or (y) the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is more than 4.25:1.00 (as of the last day of the most recently ended Test Period) (clauses (x) and deliver mortgages or other applicable Security Instruments on (y), collectively, the “Ratio Mortgage Requirement”), cause such Midstream Properties, Deeds and/or Rights of Way Hotel Real Property to be subject to a Mortgage in favor of the Administrative Agent or, as the case may be, the Mexican Collateral Agent, in each case for the benefit of the Secured Parties, and take, or cause the relevant Subsidiary to take, such actions as shall be necessary or reasonably requested by the Administrative Agent or, as applicable, the Mexican Collateral Agent, to grant and perfect or record such Lien, in form each case to the extent required by, and substance satisfactory subject to the limitations and exceptions of, the Collateral and Guarantee Requirement and the Agreed Security Principles and to otherwise comply with the requirements thereof; it being understood and agreed that the cost-benefit analysis referred to in section 1(b) of the Agreed Security Principles shall apply to the granting and/or perfection of a Mortgage pursuant to this Section 6.11(d); provided, that if, immediately after giving effect to any such acquisition, the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.08) is greater than 5.00:1.00, the cost-benefit analysis referred to in section 1(b) of the Agreed Security Principles shall not apply to the granting and/or perfection of a Mortgage pursuant to this Section 6.11(d) (which granting and perfection shall be required in any case irrespective of the amount of the recordation costs, notarial fees and/or other costs associated therewith); provided further that nothing in this Section 6.11(d) shall prevent the Administrative Agent from limiting or revising the requirements applicable to the granting and/or perfection of any Mortgage, as it may deem appropriate (in its sole discretion) in order to reduce the recordation costs, notarial fees and/or other costs associated therewith, including by limiting the amount of Indebtedness secured by such Mortgage;
(e) At the time that any Mortgage is granted pursuant to Section 6.11(d) (or such longer period as the Administrative Agent may agree in writing in its discretion), take and cause any direct or indirect Subsidiary of the Borrower (other than a Non-Recourse Subsidiary), if (and only if) the corresponding Ratio Mortgage Requirement is met, to take whatever action as may be necessary or reasonably requested by the Administrative Agent to comply, as regards all tangible and intangible assets of the entity owning the Hotel Real Property subject to that Hotel Acquisition and subject to the limitations and exceptions of the Agreed Security Principles, with the requirements set forth in clause (e) of the definition of “Collateral and Guarantee Requirement”;
(f) Not later than 90 days (of such longer period as the Administrative Agent may agree in writing in its discretion) after the date on which a Hotel Acquisition is consummated, take and cause any direct or indirect Subsidiary of the Borrower (other than a Non-Recourse Subsidiary), if (and only if) the corresponding Ratio Mortgage Requirement is met, to take whatever action as may be necessary or reasonably requested by the Administrative Agent to comply, with respect to the Hotel Real Property subject to such Hotel Acquisition, with the requirements as regards security interest in Equity Interests set forth in clause (c) of the definition of “Collateral and Guarantee Requirement”;
(g) If reasonably requested by the Administrative Agent or the Mexican Collateral Agent, as applicable, within 45 days after such request (or such longer period as the Administrative Agent may agree in writing in its discretion), deliver to the Administrative Agent and, if applicable, the Mexican Collateral Agent a signed copy of an opinion, addressed to the Administrative Agent., the Lenders and, if applicable, the Mexican Collateral Agent, of counsel for the Loan Parties reasonably acceptable to the Administrative Agent or, as applicable, the Mexican Collateral Agent, as to such customary matters set forth in this Section 6.11 as it may reasonably request; and
(bh) The Parent and the Borrower shall As promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days as reasonably practicable after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested request therefor by the Administrative Agent or, as applicable, the Mexican Collateral Agent.
(c) Notwithstanding anything , deliver to the contrary contained hereinAdministrative Agent and, if relevant, the Mexican Collateral Agent with respect to any real propertyMortgaged Property added to the Collateral pursuant to this Section 6.11, if any existing title reports or abstracts, to the extent available and in the possession or control of a Loan Party. Notwithstanding anything herein to the contrary, no Mortgage in the United States shall be recorded with respect to Mortgaged Property pursuant to the foregoing or the Collateral and Guarantee Requirement until each Lender expressly requesting flood due diligence has received written notice of such Mortgage at least 45 days prior to such recording and each such Lender has confirmed satisfactory completion of flood due diligence and flood insurance compliance procedures in respect of Flood Insurance Laws or as otherwise required by the Lenders. The Borrower shall from time to time, at the expense of the Borrower, (a) promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or (b) at the reasonable request of the Administrative Agent and/or the Mexican Collateral Agent, as applicable, take such steps as may be reasonably determines that necessary or desirable, to create and/or maintain the costsvalidity, financial perfection or priority of and otherwise, of obtaining protect any security interest granted hereby or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements to enable the Administrative Agent and the Mexican Collateral Agent to exercise and enforce their rights and remedies hereunder with respect to such a Lien outweigh any Collateral. The parties hereto acknowledge and agree that the benefit to the Secured Parties of the security afforded thereby, the Administrative Mexican Collateral Agent will notify have no additional duty as to any Collateral or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall Mexican Collateral Agent will not be required to become subject to a Lien pursuant to responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to perfection of any Liens on the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienCollateral under local Law.
Appears in 2 contracts
Sources: Credit Agreement (Playa Hotels & Resorts N.V.), Credit Agreement (Playa Hotels & Resorts N.V.)
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as In connection with each redetermination of the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorBorrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties to ascertain whether the Mortgaged Properties have a PV9% value of not less than the Minimum Collateral Value, based upon the Administrative Agent’s then current commodity price projections and assumptions. In connection with such review, the Borrower shall supply the Administrative Agent with a written report of the calculations used to determine such PV9% value of the Mortgaged Properties certified by a Responsible Officer of the Borrower. In the event that the Mortgaged Properties do not have a PV9% value of at least the Minimum Collateral Value, then the Borrower shall, and shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide each Restricted Subsidiary to, grant to the Administrative AgentAgent as security for the Indebtedness a first-priority Lien interest (subject only to Excepted Liens of the type described in clauses (a) to (e), without duplication(g) and (h) of the definition thereof) on additional Oil and Gas Properties (other than those not included in the most recently delivered Reserve Report) such that after giving effect thereto, copies the Mortgaged Properties will have a PV9% value, based upon such projections and assumptions, of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that not less than the Minimum Collateral Value; provided, if no Permitted Senior Debt shall have been received or otherwise acquired issued and be outstanding pursuant to Section 9.02(j), if such first-priority Lien interests on additional Oil and Gas Properties shall not have been granted within the time period allowed therefor, the Borrowing Base shall be automatically reduced to an amount equal to the PV9% value of the Mortgaged Properties. All such Liens will be created and perfected by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder and in which Equity Interests were acquired) as a result accordance with the provisions of such Material Acquisition or during such perioddeeds of trust, as applicablesecurity agreements and financing statements, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the foregoing, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties that are included in the most recently delivered Reserve Report and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.09(b).
(b) The Parent Borrower and the Borrower Parent MLP shall notify the Administrative Agent at the time that any Person becomes a Restricted Subsidiary, and promptly thereafter (and in any event within 30 days) cause each (i) Domestic any such Restricted Subsidiary that is not an Excluded Subsidiary to be a party guarantee the Indebtedness pursuant to the Guaranty Guarantee Agreement; provided, (x) BSAP II GP, L.L.C and Collateral Agreement pursuant the Parent MLP GP shall not be required to which guarantee the Indebtedness, (y) Black Stone Natural Resources Management Company shall not be required to guarantee the Indebtedness unless it shall have consolidated net tangible assets (other than any such Domestic Subsidiary will grant Liens assets to be used for the purpose of funding payroll, compensation and security interests benefits and other disbursements) in substantially all excess of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)$5,000,000, and (iiz) Domestic Subsidiary, other than the Borrower, any Restricted Subsidiary shall not be required to guarantee the Obligations pursuant Indebtedness unless it shall have either (x) consolidated net tangible assets (other than any such assets to be used for the Guaranty purpose of funding payroll, compensation and Collateral Agreementbenefits and other disbursements) in excess of $5,000,000 or (y) Oil and Gas Properties included in the Borrowing Base. In connection with any such guarantee by the foregoingParent MLP and/or any such Restricted Subsidiary that is not an Excluded Subsidiary, the Borrower and/or the Parent MLP, as applicable, shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (Ai) execute and deliver a supplement to the Guaranty and Collateral Agreement, Guarantee Agreement executed by such Domestic Subsidiary, (Bii) pledge all of the Equity Interests capital stock of such Domestic new Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the including, without limitation, delivery of original stock certificates, if any, certificates evidencing the Equity Interests capital stock of such Domestic Subsidiary and/or such Drop Down EntitySubsidiary, together with an appropriate undated stock power powers for each certificate duly executed in blank by the registered owner thereof) and (Ciii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. In the event that the Borrower and/or one or more Guarantors forms or acquires any interests in a Restricted Subsidiary that is a First-Tier Foreign Subsidiary or FSHCO, the Borrower or the Parent MLP shall, or shall cause such Guarantor to, (iii) pledge 65% of the voting capital stock and all of the non-voting capital stock owned by the Borrower, the Parent MLP and/or a Guarantor of such new First-Tier Foreign Subsidiary or FSHCO (including, without limitation, if applicable, delivery of original stock certificates evidencing the capital stock of such Person, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iv) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. For the avoidance of doubt, none of the capital stock of a Foreign Subsidiary that is not a First-Tier Foreign Subsidiary shall be pledged.
(c) Notwithstanding anything to In the contrary contained hereinevent that an Event of Default occurs or a Deficiency continues beyond any applicable cure period, with respect to any real propertythe Borrower and the Parent MLP shall, if and shall cause each Guarantor to, immediately execute and deliver documentation in the form requested by the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining granting a Lien, perfecting a first priority Lien and/or complying with on all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded therebyBorrower’s and the Guarantors’ Property that is not then Mortgaged Property.
(d) Each Loan Party will cause each of their respective Deposit Accounts, Commodities Accounts or Securities Accounts (in each case, other than Excluded Accounts) to at all times either be maintained with the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then or subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lienan Account Control Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Black Stone Minerals, L.P.), Credit Agreement (Black Stone Minerals, L.P.)
Additional Collateral; Additional Guarantors. (a) The Borrower shall cause each of its Subsidiaries to unconditionally guaranty, on a joint and several basis, the prompt payment and performance of the Indebtedness pursuant to the Guaranty Agreement and, in connection therewith, within fifteen (i15) Within thirty (30) days Business Days (or such longer period not to exceed ninety (90) days later date as the Administrative Agent may agree in its sole discretion) after following any acquisition or creation (Aor similar event) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with new Subsidiary following the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorEffective Date, the Borrower shall cause such Subsidiary, to (i) become a party to the Credit Parties Guaranty Agreement by executing and any applicable Drop Down Entity Mortgagor delivering an amendment or a supplement to provide the Guaranty Agreement in form and substance acceptable to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way (ii) other than with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to Logistics Subsidiary Guarantor, become a Guarantor hereunder party to the Security Agreement by executing and delivering an amendment or a supplement to the Security Agreement in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, form and substance acceptable to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case (iii) become a party to the Pledge Agreement by executing and delivering an amendment or a supplement to the Pledge Agreement in form and substance satisfactory acceptable to the Administrative Agent, and (iv) execute and deliver such other additional security documents, closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(b) The Parent and Within fifteen (15) Business Days (or such later date as the Administrative Agent may agree in its sole discretion) following any acquisition or creation (or similar event) of a new Subsidiary following the Effective Date, the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause the applicable Guarantor that owns Equity Interests in such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a an amendment or supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) Pledge Agreement to confirm the pledge all of the Equity Interests in such new Subsidiary. The Borrower and each Guarantor shall also deliver to the Administrative Agent, together with or prior to its delivery of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower Pledge Agreement or any Guarantor amendment or supplement thereto as set forth above, (and deliver the A) original stock or equity certificates, if any, evidencing the Equity Interests of such Domestic in each Subsidiary and/or such Drop Down Entityowned by it, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof or, if uncertificated, such other documents as may be reasonably required by the Administrative Agent to perfect the Lien therein by “control” in accordance with the applicable Uniform Commercial Code (including, without limitation, Sections 8-106, 9-106 and 9-314 thereof) and (CB) execute and deliver such other additional security documents, closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything Simultaneously with any Permitted Acquisition and/or acquisition of real property following the Effective Date, the Borrower shall, and shall cause each Subsidiary Guarantor (other than any Logistics Subsidiary Guarantor) to, grant to the contrary contained hereinAdministrative Agent for the benefit of the Secured Parties a first priority Lien, as applicable, in all real and personal Property (including Equity Interests and other securities or interests) (provided that Excepted Liens of the type described in clauses (a) through (c) and (j) of the definition thereof may exist, but subject to the provisos at the end of such definition) acquired by the Borrower or any such Subsidiary Guarantor as part of such acquisition, and the Borrower or such Subsidiary Guarantor, as applicable, shall execute such documents, joinder agreements, financing statements, mortgages, agreements and instruments, and take all action (including obtaining and providing consents, title insurance, surveys and legal opinions) that may be required under applicable law or as the Administrative Agent may request, in order to grant, preserve, protect and perfect such Lien. All such Liens will be created and perfected by and in accordance with the provisions of mortgages, deeds of trust, security agreements and financing statements or other Security Instruments, all in form and substance reasonably satisfactory to the Administrative Agent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes.
(d) Subject to the foregoing clauses (a) and (b), the Borrower will at all times cause the other tangible and intangible assets and Property of the Borrower and each Subsidiary Guarantor, including such assets and Property acquired after the Effective Date, to be subject to a Lien of the Security Instruments (which, in the case of the Logistics Subsidiary Guarantors, shall be limited to the Lien created under the Pledge Agreement).
(e) Notwithstanding any provision in any of the Loan Documents to the contrary, other than with respect to the Sand Hill Lease, the ▇▇▇▇▇▇▇▇ Prop 50 Lease, the ▇▇▇▇▇ Lease and the ▇▇▇▇▇▇▇ Lease, no Building (as defined in the applicable Flood Insurance Regulations) or Manufactured (Mobile) Home (as defined in the applicable Flood Insurance Regulations) owned by the Borrower or any real propertyother Loan Party, if shall be included in the Administrative Agent reasonably determines Mortgaged Property and no Building or Manufactured (Mobile) Home shall be encumbered by any Security Instrument; provided that (A) the costsBorrower’s or any Subsidiary Guarantor’s, financial as applicable, interests in all lands and otherwiseminerals situated under any such Building or Manufactured (Mobile) Home shall be included in the Mortgaged Property and shall be encumbered by the Security Instruments and (B) the Borrower shall not, of obtaining and shall not permit any Subsidiary Guarantor to, permit to exist any Lien on any Building or maintaining a LienManufactured (Mobile) Home except Excepted Liens; provided, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit further, that, upon written notice to the Secured Parties of the security afforded therebyBorrower, the Administrative Agent will notify may require the Borrower or any Subsidiary Guarantor to obtain flood insurance in such amounts as are required by the applicable Flood Insurance Regulations and at such time the previously excluded Building or Manufactured (Mobile) Home shall then be included in the Mortgaged Property and under the Security Instruments and the Borrower or such Subsidiary Guarantor shall execute and deliver such additional documents, instruments, agreements and financing statements as shall be necessary to evidence the same, at the Borrower’s sole cost and expense.
(f) The Borrower will, and will cause each of the Non-Logistics Subsidiary Guarantors to, deliver to the Administrative Agent Blocked Account Control Agreements (in each case duly executed and delivered by the relevant Loan Party and relevant depository bank) covering such determination and, Deposit Accounts (iother than Excluded Accounts (as such term is defined in the Security Agreement)) if such real property is as shall be necessary to ensure that the aggregate balance of all Deposit Accounts (other than Excluded Accounts) not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property Blocked Account Control Agreement at any given time is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lienless than $500,000.
Appears in 2 contracts
Sources: Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.), Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.)
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity MortgagorDevCo) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30December 31, 20152017, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorAcquisition, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor DevCo to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor DevCo (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor DevCo or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent. In connection with the foregoing, to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver, or shall cause to be delivered, (x) title and extended coverage insurance covering real property subject to the additional Security Instruments in an amount equal to the purchase price of such interest in real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate, (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Security Instruments, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (z) legal opinions, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)Material Subsidiary, and (ii) Domestic Subsidiary, any other than the BorrowerRestricted Subsidiary that guarantees any Debt of any other Credit Party, to guarantee the Obligations Indebtedness pursuant to the Guaranty and Collateral Security Agreement. In connection with ; provided that the foregoing, the Parent shall, or foregoing shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect not apply to any real property, if the Administrative Agent reasonably determines DevCo until such time that the costs, financial and otherwise, of obtaining or maintaining DevCo is a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.Wholly-
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (or such longer period not to exceed ninety (90x) days as in the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party case of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties property that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) was Excluded Property as a result of such Material Acquisition the U.S. Hold Separate Order or during such periodany U.S. Hold Separate Agreement, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
within thirty (b30) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or date such property ceases to be Excluded Property, (y) in the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or case of any Drop Down Entity toother property that was Excluded Property, within thirty (A30) execute and deliver a supplement days after the end of fiscal quarter in which such property ceases to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.Excluded Property;
Appears in 1 contract
Sources: Refinancing Amendment to Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) [Intentionally omitted].
(ia) Within Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (1) any property acquired after the Springing Security Effective Date by any U.S. Loan Party or Canadian Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property of any U.S. Loan Party or Canadian Loan Party that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, is owned by any U.S. Loan Party or Canadian Loan Party and has ceased to be Excluded Property following the Springing Security Effective Date, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any benefit of the other Credit Party of Parties, a Material Acquisition (Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on subject to the closing date Intercreditor Agreement, take all actions necessary to cause such Lien to be duly perfected to the extent required by such Security Document in accordance with all applicable Requirements of Law, but limited to the filing of UCC and PPSA financing statements in the United States, Canada or any Permitted Acquisition pursuant state, province or territory thereof, as applicable, as may be reasonably requested by the Collateral Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Effective Date (other than (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity Mortgagor Specified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Guarantor Subsidiary and (z) a Securitization Entity) or any Restricted Subsidiary that was an Excluded Guarantor Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Guarantor Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property owned by any U.S. Loan Party or Canadian Loan Party ceases to be Excluded Property following the Springing Security Effective Date, promptly (and in which Equity Interests were acquiredany event within (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition property ceases to be Excluded Property, (y) within thirty (30) days after the end of the fiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Holding Luxembourg S.à.▇.▇., which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent may agree to an extension of such time period in its sole discretion) or during ceases to be an Excluded Guarantor Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such periodproperty owned by any U.S. Loan Party or Canadian Loan Party (other than property described in clause (x) above) ceased to be Excluded Property; provided that the Administrative Agent may agree to an extension of such time period or (yz) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer), cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the 1066931.03C-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.04-CHISR02A - MSW Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (except as otherwise agreed by any Governmental Authorityin the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute and deliver mortgages (x) a Joinder Agreement or other applicable Security Instruments on such Midstream Propertiescomparable documentation to become a Subsidiary Guarantor, Deeds and/or Rights including (but, in the case of Way in favor of a Foreign Subsidiary, if requested by the Administrative Agent, a guarantee (or joinder thereto) governed byonly to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction of organization (in each case such), in form and substance reasonably satisfactory to the Administrative Agent.
, and (by) The Parent and following the Borrower shall promptly cause each (i) Domestic Springing Security Effective Date, if such Restricted Subsidiary to be is a party U.S. Loan Party or a Canadian Loan Party, joinder agreements to the Guaranty and Collateral Agreement pursuant applicable Security Documents, in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral AgreementAdministrative Agent), and (iiB) Domestic Subsidiary, other than to take all actions necessary or advisable in the Borrower, opinion of the Administrative Agent or the Collateral Agent to guarantee cause the Obligations pursuant Liens created by the applicable Security Documents to be duly perfected to the Guaranty and Collateral Agreement. In connection extent required by such agreement in accordance with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptlyall applicable Requirements of Law, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant limited to the terms hereof) filing of UCC and PPSA financing statements in the United States, Canada and any state, province or of any Drop Down Entity toterritory thereof, (A) execute and deliver a supplement to the Guaranty and Collateral Agreementas applicable, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall may be reasonably be requested by the Administrative Agent. Notwithstanding the foregoing, this clauseparagraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent, the Collateral Agent and the Borrower. As of the Effective Date, each Lender party hereto and each Lender that becomes a party to this Agreement after the Effective Date, expressly consents to the terms set forth in, and the rights of the Administrative AgentAgents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien[Intentionally omitted].
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) In connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties (ias described in Section 8.12(c)(vi)) Within thirty to ascertain whether the Mortgaged Properties represent at least 90% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report, after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties represent less than 90% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report delivered to the Administrative Agent and the Collateral Agent, then the Borrower shall, and shall cause each of its Restricted Subsidiaries to, grant, within sixty (3060) days (or such longer period not to exceed ninety (90) days later date as the Administrative Agent may agree to in its sole discretion) of the delivery of the Reserve Report Certificate, to the Collateral Agent or its designee as security for the Secured Obligations a first-priority Lien interest (subject to Liens permitted by Section 9.03 which may attach to Mortgaged Property) on additional Oil and Gas Properties of the Borrower and the Restricted Subsidiaries not already subject to a Lien of the Security Instruments such that after (A) giving effect thereto, the consummation value of the Mortgaged Properties is equal to or greater than 90% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in such Reserve Report. All such Liens will be created and perfected by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests and in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning accordance with the period beginning on provisions of the date hereof Guaranty and ending on June 30Collateral Agreement, 2015deeds of trust, mortgages, security agreements and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages financing statements or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent or its designee and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the foregoing, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.14(b).
(b) The Parent and the Borrower shall promptly cause each Material Subsidiary (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, an Excluded Subsidiary or Immaterial Subsidiary) to become a Guarantor and guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingany such guaranty, the Parent Borrower shall, or shall cause such Domestic Subsidiary the Restricted Subsidiaries to, promptly, but in any event no later than 15 days (or such later date as the Administrative Agent may agree to in its sole discretion) after the formation or acquisition or the formation and organization of such Domestic Subsidiary (or other similar event event, including an Immaterial Subsidiary becoming a Material Subsidiary or upon the redesignation designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereofSubsidiary) or of any Drop Down Entity Material Subsidiary (other than an Excluded Subsidiary or Immaterial Subsidiary) to, (Ai) cause such Material Subsidiary to execute and deliver a joinder and supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (Bii) (A) pledge all of the Equity Interests issued by such Material Subsidiary and (B) cause such Material Subsidiary to pledge all of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests directly owned by such Material Subsidiary in its respective Subsidiaries (including, without limitation, delivery of original stock certificates evidencing such Domestic Subsidiary and/or such Drop Down EntityEquity Interests, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); provided, that such pledge shall be limited to (x) 65% of the voting Equity Interests in any Excluded Subsidiary described in clauses (a) or (b) of the definition thereof and (Cy) 0% of the Equity Interests in any Excluded Subsidiary described in clauses (c) or (d) of the definition thereof, and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative AgentCollateral Agent or its designee.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity MortgagorDevCo) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30December 31, 20152017, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorAcquisition, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor DevCo to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor DevCo (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor DevCo or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent. In connection with the foregoing, to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver, or shall cause to be delivered, (x) title and extended coverage insurance covering real property subject to the additional Security Instruments in an amount equal to the purchase price of such interest in real property (or such other amount as shall be reasonably specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a surveyor’s certificate, (y) any consents or estoppels reasonably deemed necessary or advisable by the Administrative Agent in connection with such Security Instruments, each of the foregoing in form and substance reasonably satisfactory to the Administrative Agent and (z) legal opinions, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)Material Subsidiary, and (ii) Domestic Subsidiary, any other than the BorrowerRestricted Subsidiary that guarantees any Debt of any other Credit Party, to guarantee the Obligations Indebtedness pursuant to the Guaranty and Collateral Security Agreement; provided that the foregoing shall not apply to any DevCo until such time that the DevCo is a Wholly-Owned Subsidiary. In connection with the foregoingany such guaranty, the Parent shall, or and the Borrower shall (i) cause such Domestic Subsidiary toto execute and deliver the Guaranty and Security Agreement or a supplement thereto, promptlyas applicable, but (ii) cause the Credit Party that owns Equity Interests in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such new Domestic Subsidiary and/or such Drop Down Entity that are owned by pursuant to the Borrower or any Guarantor Guaranty and Security Agreement (and deliver the including, without limitation, delivery (if applicable) of original stock certificates, if any, certificates evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down EntitySubsidiary, together with an appropriate undated stock power powers for each certificate duly executed in blank by the registered owner thereof) and (Ciii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything The Parent and the Borrower will in connection with any deposit account and/or any securities account (other than an Excluded Account for so long as it is an Excluded Account) established, held or maintained by a Credit Party after the Effective Date, cause such deposit account and/or securities account (other than an Excluded Account for so long as it is an Excluded Account) to be subject to a Control Agreement prior to depositing any funds or other Property therein or prior to such deposit account or securities account ceasing to become an Excluded Account and at all times thereafter.
(d) The Parent and the Borrower shall promptly cause each DevCo to guarantee the Indebtedness pursuant to the contrary contained herein, DevCo Guaranty. In connection with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded therebyguaranty, the Administrative Agent will notify Parent and the Borrower of such determination and, shall (i) if cause such real property is not then subject DevCo to execute and deliver a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments andDevCo Mortgage, (ii) if cause the Credit Party that owns Equity Interests in such real property is already subject Domestic Subsidiary to a Lien pledge all of the Equity Interests of each DevCo pursuant to the Guaranty and Security InstrumentsAgreement (including, without limitation, delivery (if applicable) of original certificates evidencing the Equity Interests of such DevCo, together with an appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent shallAgent. Upon the date that a DevCo becomes a Wholly-Owned Subsidiary, upon obtaining (x) the consent of Borrower shall immediately cause such DevCo to execute a joinder and/or supplement to the Majority LendersGuaranty and Security Agreement, release which shall supersede and replace the DevCo Guaranty executed by such LienDevCo and (y) such Wholly-Owned Subsidiary shall be deemed to be a Credit Party (and not a DevCo) under the Loan Documents.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) On the Closing Date, the Borrower shall grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien (isubject only to Liens permitted pursuant to Section 6.03) Within in substantially all of its assets pursuant to the Guarantee and Collateral Agreement and Mortgages.
(b) If the Borrower shall form, acquire or otherwise own a Subsidiary after the Closing Date, the Borrower shall promptly (but, in any event, within thirty (30) days of formation or acquisition (or such longer period not later date agreed to exceed ninety by the Lender)) cause such Subsidiary to (90i) days as guarantee the Administrative Agent may agree in its sole discretionpayment and performance of the Obligations pursuant to the Guarantee and Collateral Agreement (or supplements or joinders thereto) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on grant to the closing date Lender, for the benefit of any Permitted Acquisition the Secured Parties, a perfected Lien (subject only to Liens permitted pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquiredSection 6.03) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty Guarantee and Collateral AgreementAgreement (or supplements or joinders thereto) and any Mortgages. In connection with the foregoingany such guaranty, the Parent shall, or Borrower shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver (or cause the applicable Person to execute and deliver) such other additional closing documents, legal opinions and certificates as shall reasonably be requested by the Lender.
(c) In the event that any Credit Party becomes the owner of a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, then the Credit Party shall (Bi) pledge one hundred percent (100%) of all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity Subsidiary, in each case, that are owned by such Credit Party and to the Borrower or any Guarantor extent such pledge does not occur automatically under the Guarantee and Collateral Agreement (and deliver the including, in each case, delivery of original stock certificates, if any, evidencing the such Equity Interests of such Domestic Subsidiary and/or such Drop Down EntityInterests, together with an appropriate undated stock power powers for each certificate duly executed in blank by the registered owner thereof) and (Cii) execute and deliver (or cause the applicable Person to execute and deliver) such other additional closing documents, certificates and legal opinions and certificates as shall reasonably be requested by the Administrative AgentLender.
(cd) Notwithstanding anything The Borrower will, and will cause each Guarantor to, by no later than the date that is thirty (30) days following the acquisition thereof (or such later date acceptable to the contrary contained hereinLender in its sole discretion) execute and deliver to the Administrative Agent such mortgages, documents, title information, instruments, agreements, opinions and certificates with respect to any real propertyProperty acquired by the Borrower or the Guarantors after the Closing Date, if including but not limited to any Midstream Properties and Oil and Gas Properties, that the Lender shall reasonably request to create in favor of the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh for the benefit to of the Secured Parties Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in such Property (subject only to Excepted Liens).
(e) Subject to any express exceptions, time periods and other terms as are set forth herein or in the Collateral Documents, the Borrower will, and will cause each Guarantor to, at all times cause all personal property of the security afforded therebyBorrower or any such Guarantor, as applicable, that constitute Collateral to be subject to a first priority Lien (subject only to Excepted Liens) in favor of the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienCollateral Documents.
Appears in 1 contract
Sources: Senior Secured Term Loan Agreement (Sable Offshore Corp.)
Additional Collateral; Additional Guarantors. (aDelivery of Account Control Agreements o) ERISA Compliance p) Commodity Exchange Act Keepwell
(i) Within thirty On the date that is 45 days after the Closing Date (30) days (the “Initial Hedging Test Date”), the Borrower or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any another Credit Party shall have entered into and be party to swap or other hedging agreements with a Lender or affiliate of a Material Acquisition (other than any acquisition Lender hedging notional amounts of Equity Interests in a Drop Down Entity Mortgagor) crude oil, natural gas, and (B) natural gas liquids, covering not less than, for each semi-annual period ending on June 30 or December 31, beginning with calendar month during the period beginning on of the date hereof first 24 consecutive full calendar months (or, in the case of natural gas liquids, 12 consecutive full calendar months (the “Initial NGL Period”)) following the Initial Hedging Test Date, 50% of the reasonably anticipated production of such crude oil and ending on June 30natural gas, 2015calculated separately, and 50% of the reasonably anticipated revenues from such natural gas liquids, in each case constituting proved oil and gas properties for such calendar month as such anticipated production or revenues, as applicable, are reflected in the most recently delivered Reserve Report, (ii) on or before the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagorthat is 12 months following the Initial Hedging Test Date (the “Second Hedging Test Date”), the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any another Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required shall have entered into and be party to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages swap or other applicable Security Instruments on such Midstream Propertieshedging agreements with a Lender or affiliate of a Lender hedging notional amounts of natural gas liquids covering not less than, Deeds and/or Rights of Way in favor for each calendar month during the period of the Administrative Agentfirst 12 consecutive full calendar months following the Initial NGL Period, 50% of the reasonably anticipated revenues from such natural gas liquids, in each case constituting proved oil and gas properties for such calendar month as such anticipated revenues are reflected in form and substance satisfactory to the Administrative Agent.
(b) The Parent and most recently delivered Reserve Report; provided, however, that, in the Borrower shall promptly cause each case of the foregoing clauses (i) Domestic Subsidiary to be a party to and (ii), such swap or other hedging agreements shall have effective floor prices of not less than eighty-five percent (85%) of the Guaranty and Collateral Agreement pursuant to which closing contract price for the applicable settlement month as quoted on NYMEX as of date such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)swap or other hedging agreements are entered into, and (iiiii) Domestic Subsidiary, other than within 5 business days following each of the Borrower, to guarantee Initial Hedging Test Date and the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingSecond Hedging Test Date, the Parent shallBorrower will provide a certificate of a financial officer setting forth calculations demonstrating compliance with such minimum hedging requirements hereunder; provided further that, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after if the acquisition or the formation and organization of such Domestic Subsidiary Lenders (or any affiliate thereof) are not willing to enter into swap or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the hedging agreements on market terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by with the Borrower or any Guarantor (a Credit Party that are sufficient for the Credit Parties to comply with these minimum hedging requirements, such minimum hedging requirements shall be deemed reduced to be the volumes and deliver the original stock certificates, if any, evidencing the Equity Interests tenors for which Lenders or affiliates of such Domestic Subsidiary and/or such Drop Down Entity, together Lenders are willing to enter into swap or other hedging agreements with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to or a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienCredit Party on market terms.
Appears in 1 contract
Sources: Restructuring Support Agreement (Chaparral Energy, Inc.)
Additional Collateral; Additional Guarantors. (aaa) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as In connection with each redetermination of the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorBorrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties to ascertain whether the Mortgaged Properties have a PV9% value of not less than the Minimum Collateral Value, based upon the Administrative Agent’s then current commodity price projections and assumptions. In connection with such review, the Borrower shall supply the Administrative Agent with a written report of the calculations used to determine such PV9% value of the Mortgaged Properties certified by a Responsible Officer of the Borrower. In the event that the Mortgaged Properties do not have a PV9% value of at least the Minimum Collateral Value, then the Borrower shall, and shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide each Restricted Subsidiary to, grant to the Administrative AgentAgent as security for the Indebtedness a first-priority Lien interest (subject only to Excepted Liens of the type described in clauses (a) to (e), without duplication(g) and (h) of the definition thereof) on additional Oil and Gas Properties (other than those not included in the most recently delivered Reserve Report) such that after giving effect thereto, copies the Mortgaged Properties will have a PV9% value, based upon such projections and assumptions, of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that not less than the Minimum Collateral Value; provided, if no Permitted Senior Debt shall have been received or otherwise acquired issued and be outstanding pursuant to Section 9.02(j), if such first-priority Lien interests on additional Oil and Gas Properties shall not have been granted within the time period allowed therefor, the Borrowing Base shall be automatically reduced to an amount equal to the PV9% value of the Mortgaged Properties. All such Liens will be created and perfected by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder and in which Equity Interests were acquired) as a result accordance with the provisions of such Material Acquisition or during such perioddeeds of trust, as applicablesecurity agreements and financing statements, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative Agent.
Agent and in sufficient executed (band acknowledged where necessary or appropriate) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreementcounterparts for recording purposes. In connection order to comply with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in if any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute places a Lien on its Oil and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity Gas Properties that are owned by included in the Borrower or any Guarantor (most recently delivered Reserve Report and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Restricted Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not a Guarantor, then subject to it shall become a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienGuarantor and comply with Section 8.09(b).
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (x) within thirty (30) days (after the acquisition thereof, or after the date such longer period not property ceases to exceed ninety (90) days as be Excluded Property; provided that the Administrative Agent may agree to an extension thereof in its sole discretiondiscretion or (y) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (Ai) execute and deliver to the consummation by any Credit Party Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplicationperfection and priority of the Lien of the Security Documents against such after-acquired properties.
(b) WithSubject to Section 2.20, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties any personPerson that have been received becomes a Restricted Subsidiary or otherwise acquired by a Specified Aleris Subsidiary after the Closing Date (other than (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), or any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person Restricted Subsidiary that is a Drop Down Entity Mortgagor was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, promptly (and in which any event (x) within thirty (30) days after such personPerson becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), provided that the Administrative Agent may agree to an extension of such time period in its sole discretion or (y) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests were acquired) as a result of such Material Acquisition Restricted Subsidiary or during such periodSpecified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary (other than (Ax) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (By) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by Applicable Law, (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (or, in the case of a Subsidiary organized under the laws of the United States or any state thereof or the District of Columbia, a U.S. Borrower) and deliver mortgages joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the LienLiens created by the applicable Security DocumentDocuments to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable Security Instruments filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Lien on such Midstream PropertiesEquity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), Deeds and/or Rights (y) any Joint Venture Subsidiary, to the extent the terms of Way any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 2 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Designated Company. As of the Amendment No. 2 Effective Date, each Lender party to Amendment No. 2, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Amendment No. 2 Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof, a (or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property located outside of the United States owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), as additional security for the Secured Obligations. Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property located outside of the United States (including a Title Policy (or title opinion reasonably satisfactory to the Collateral Agent), a Survey (if applicable in each case the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property located outside of the United States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of Parent Borrowerthe Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of Parent Borrowerthe Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Administrative Borrower may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Parent BorrowerDesignated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Management System or the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(bf) The Parent and Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the Borrower contrary, in no event shall promptly cause each this Section 5.11 or such Loan Document obligate any Loan Party to (i) Domestic Subsidiary ▇▇▇▇▇ ▇ ▇▇▇▇ to the Collateral Agent on any Excluded Property or (ii) take any perfection steps with respect to any Excluded Property.
(g) Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document (other than the definitions of Eligible Accounts, Eligible Inventory, Reserves or any other provisions related to Excess Availability or the eligibility of any assets to be a party included in any Borrowing Base) to the Guaranty and contrary, in no event shall this Section 5.11 or such Loan Document obligate any Loan Party to (i) to the extent creation of a security interest in a specific asset requires that such asset be described with specificity in the applicable Security Document or filing (including, for example, a list of specific items of Inventory with identification numbers, or descriptions of commercial tort claims), the creation of the Collateral Agreement pursuant Agent’s security interest in such assets, to which such Domestic Subsidiary will grant Liens and security interests the extent acquired in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)a Permitted Acquisition, and (ii) Domestic Subsidiarythe perfection of the Collateral Agent’s security interest in assets acquired in a Permitted Acquisition, other than in the Borrower, to guarantee case of clauses (i) and (ii) shall not be required until the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 date that is 60 days after the acquisition or the formation and organization of closing date for such Domestic Subsidiary Permitted Acquisition (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested later date agreed by the Administrative Agent.
); provided that (cA) Notwithstanding anything to the contrary contained herein, perfection of a security interest in Collateral with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting which a Lien and/or complying may be perfected by (x) the filing of financing statements under the UCC or equivalent filing system in a non-U.S. jurisdiction, or (y) filing short form security agreements or other filings with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.applicabl
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (wy) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, or (xz) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y) and (z), the Administrative Agent may agree to an extension thereof in its sole discretion, or (z) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (Ai) execute and deliver to the consummation by any Credit Party Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplicationperfection and priority of the Lien of the Security Documents against such after-acquired properties.
(b) Subject to Section 2.20, copies of all recorded Deeds and/or Rights of Way with withWith respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium to the extent that the Belgian Pledge Exclusion Certification has been delivered to the Administrative Agent by the Administrative Borrower in accordance with the definition of Belgian Pledge Certificate, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (X) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (Y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an 1209502.04-CHISR02A - MSW Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (X) The Parent and above) ceased to be Excluded Property, provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period in its sole discretion or (Z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary or such Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such Drop Down Entity guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion), and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by Applicable Law (in the case of the U.S. Hold Separate Assets, as such requirements of Applicable Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (and, in the case of (y) Aleris Rolled Products and Aleris Casthouse, a German Borrower, and (z) aa Subsidiary organized under the laws of the United States or any Guarantor state thereof or the District of Columbia, subject to clauses (j) and (k) below, a U.S. Borrower, and any such Joinder Agreement under this clause (z) executed by ▇▇▇▇▇▇ or any U.S. Subsidiary of Aleris shall state whether or not such Person constitutes an Individual Aleris U.S. Borrower) and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, and (C) in the case of a Subsidiary that ceases to be an Excluded Collateral Subsidiary, to deliver to the original stock certificatesAdministrative Agent a supplement to Schedule 1.01(e) removing such Subsidiary from such Schedule. Notwithstanding the foregoing, if any, evidencing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 210 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a 1209502.04-CHISR02A - MSW Restricted Subsidiary, but including Aleris German GP Holdco) to theto the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 210 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 210 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Designated Company. As of the Amendment No. 210 Effective Date, each Lender party to Amendment No. 210, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Amendment No. 210 Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence. As a condition to the effectiveness of the joinder of each of Aleris Rolled Products and Aleris Casthouse, to this Agreement as a German Borrower, in each case under this Section 5.11(b), the Designated Company shall have delivered an updated Borrowing Base Certificate to the Administrative Agent based on the Borrowing Base Certificates most recently delivered pursuant to this Agreement, which Borrowing Base Certificate shall also demonstrate the effect of the inclusion of the Eligible Accounts and Eligible Inventory owned by such Person on the Total Borrowing Base and such German Borrower’s Borrowing Base.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent) (or immediately in connection with respect the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Material Real Property located outside of the United States owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15,000,000Estate Asset (unless the subject property is already mortgaged to any real propertya third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, if as determined by the Administrative Agent reasonably determines that in its reasonable discretion), as additional security for the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit Secured Obligations. Subject to the Secured Parties terms of the security afforded therebyIntercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent will notify and the Borrower Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. 1209502.04-CHISR02A - MSW Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such determination andmanner and in such places as are required by law to establish, (i) if such real property is not then subject perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to a Lien be granted pursuant to the Security InstrumentsMortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such real property shall not be required to become subject to a Lien pursuant actions and execute and/or deliver to the Security Instruments and, (ii) if Collateral Agent such real property is already subject to a Lien pursuant to the Security Instruments, documents as the Administrative Agent shallor the Collateral Agent shall reasonably require to confirm the validity, upon obtaining the consent perfection and priority of the Majority LendersLien of any existing Mortgage or new Mortgage against such after-acquired Real Property located outside of the United States (including a Title Policy (or title opinion reasonably satisfactory to the Collateral Agent), release a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such LienMortgage). For purposes of this Section 5.11(c) Real Property located outside of the United States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% o
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) In the event that the Borrower or any Subsidiary acquires any property or interest in property (iincluding, without limitation, real property) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in property made subject to a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31Lien permitted under Section 9.3(g), beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is not subject to a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way perfected Lien in favor of the Administrative Collateral Agent pursuant to the Security Documents, the Borrower shall, and shall cause Subsidiary to, take such action (including, without limitation, the preparation and filing of mortgages or deeds of trust in form and substance satisfactory to the Collateral Agent) as the Collateral Agent shall reasonably request in order to create and/or perfect a Lien in favor of the Collateral Agent on such property.
(b) In the event that the Borrower is permitted to acquire or form any Subsidiary, in such Subsidiary shall execute a guarantee and a security agreement, or supplements to the Guarantee and the Security Agreement, and the Borrower and/or any Subsidiary which is a holder of any Capital Stock of such Subsidiary shall execute such pledge agreements or supplements to the Pledge Agreement, each case in form and substance satisfactory to the Administrative Agent and the Collateral Agent.
, and shall take such other action as shall be necessary or advisable (bincluding, without limitation, the execution of financing statements on form UCC-1) in order to perfect the Liens granted by such Subsidiary in favor of the Collateral Agent for the benefit of the Lenders and to effect and perfect the pledge of all of the Capital Stock of such Subsidiary in favor of the Collateral Agent for the benefit of the Lenders, provided that no such action shall be required after the formation of a Subsidiary which is used in connection with Permitted Acquisition prior to the later of the date of the consummation of such Permitted Acquisition and fifteen calendar days following such formation. Such Subsidiary shall thereupon become a Guarantor for all purposes under the Loan Documents, including, without limitation, Section 8.11(a) of this Agreement. The Parent Administrative Agent and the Collateral Agent shall be entitled to receive legal opinions of one or more counsel to the Borrower and such Subsidiary addressing such matters as the Administrative Agent, the Collateral Agent or their counsel may reasonably request, including, without limitation, the enforceability of the guaranty and the security agreement to which such Subsidiary becomes a party and the pledge of the Capital Stock of such Subsidiary, and the creation, validity and perfection of the Liens so granted by such Subsidiary and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party and/or other Subsidiaries to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests Agent for the benefit of the Lenders. The Borrower shall, in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)addition, and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant provide to the Guaranty Administrative Agent and the Collateral Agreement. In connection Agent with respect to such new or additional subsidiary the foregoinginformation described in the first sentence of Section 6.15, in the Parent shall, form of a written schedule or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative AgentSchedule 6.15.
(c) Notwithstanding anything the provisions of this Section to the contrary contained hereinif, following a change in the relevant sections of the Code or the regulations, rules, rulings, notices or other official pronouncements issued or promulgated thereunder, counsel for the Borrower reasonably acceptable to the Administrative Agent does not within 30 days after a request from the Administrative Agent, the Collateral Agent or the Required Lenders deliver evidence, in form and substance mutually satisfactory to the Administrative Agent, the Collateral Agent and the Borrower, with respect to any real propertyForeign Subsidiary of the Borrower which has not already had 100% of its stock pledged pursuant to a Pledge Agreement that (i) a pledge of 66-2/3% or more of the total combined voting power of all classes of Capital Stock of such Foreign Subsidiary entitled to vote, and (ii) the entering into by such Foreign Subsidiary of a Guarantee, in any such case could reasonably be expected to cause (I) the undistributed earnings of such Foreign Subsidiary as determined for federal income tax purposes to be treated as a deemed dividend to such Foreign Subsidiary's United States parent for federal income tax purposes or (II) other material adverse federal income tax consequences to the Loan Parties, then in the case of a failure to deliver the evidence described in clause (i) above, that portion of such Foreign Subsidiary's outstanding Capital Stock owned by any Loan Party and not theretofore pledged pursuant to a Pledge Agreement shall be pledged pursuant to a Pledge Agreement and in the case of a failure to deliver the evidence described in clause (ii) above, such Foreign Subsidiary shall execute and deliver (x) a Guarantee (or another guaranty in substantially similar form if needed), guaranteeing the Obligations, (y) a Pledge Agreement, and (z) the Security Agreement (or another security agreement in substantially similar form if needed) securing such Foreign Subsidiary's obligations under the Guarantee, in each case to the extent that the entering into the Guarantee and Pledge Agreement is permitted by the laws of the respective foreign jurisdiction and with all documents delivered pursuant to this Section to be in form and substance reasonably satisfactory to the Administrative Agent reasonably determines that and the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienCollateral Agent.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (x) within thirty (30) days (after the acquisition thereof or after the date such longer period not property ceases to exceed ninety (90) days as be Excluded Property; provided that the Administrative Agent may agree to an extension thereof or (y) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority 1117312.02-CHISR02A - MSW Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that, other than with respect to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagoreach Specified Aleris Subsidiary, the Borrower actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties any personPerson that have been received becomes a Restricted Subsidiary or otherwise acquired by a Specified Aleris Subsidiary after the Closing Date (other than (x) an Excluded Collateral Subsidiary and (y) a Securitization Entity) or any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person Restricted Subsidiary that is a Drop Down Entity Mortgagor was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d) or, the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, promptly (and in which any event within (x) thirty (30) days after such personPerson becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d); provided that the Administrative Agent may agree to an extension of such time period or (y) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests were acquired) as a result of such Material Acquisition Restricted Subsidiary or during such periodSpecified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary (other than, subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded 1117312.02-CHISR02A - MSW thereby, as determined by the Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, subject to the Anti-Dilution Requirement, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to execute and deliver mortgages take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable Security Instruments filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, but subject to the Anti-Dilution Requirement following the consummation of the Permitted Reorganization, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Lien on such Midstream PropertiesEquity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), Deeds and/or Rights (y) any Joint Venture Subsidiary, to the extent the terms of Way any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms 1117312.02-CHISR02A - MSW
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof (or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in each case the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more 1117312.02-CHISR02A - MSW than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(bf) The Parent and Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the Borrower contrary, in no event shall promptly cause each this Section 5.11 or such Loan Document obligate any Loan Party to (i) Domestic Subsidiary to be a party ▇▇▇▇▇ ▇ ▇▇▇▇ to the Guaranty and Collateral Agreement pursuant Agent on any Excluded Property or (ii) take any perfection steps with respect to which any Excluded Property.
(g) Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the contrary, in no event shall this Section 5.11 or such Domestic Subsidiary will grant Liens and Loan Document obligate any Loan Party to (i) to the extent creation of a security interests interest in substantially all a specific asset requires that such asset be described with specificity in the applicable Security Document or filing (including, for example, a list of its personal property (excluding specific items of Inventory with identification numbers, or descriptions of commercial tort claims), the assets excluded from creation of the “Collateral” under Collateral Agent’s security interest in such assets, to the Guaranty and Collateral Agreement)extent acquired in a Permitted Acquisition, and (ii) Domestic Subsidiarythe perfection of the Collateral Agent’s security interest in assets acquired in a Permitted Acquisition, other than in the Borrower, to guarantee case of clauses (i) and (ii) shall not be required until the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 date that is 60 days after the acquisition or the formation and organization of closing date for such Domestic Subsidiary Permitted Acquisition (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested later date agreed by the Administrative Agent.
); provided that (cA) Notwithstanding anything to the contrary contained herein, perfection of a security interest in Collateral with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting which a Lien and/or complying may be perfected by (x) the filing of financing statements under the UCC or equivalent filing system in a non-U.S. jurisdiction, or (y) filing short form security agreements or other filings with all Governmental Requirements with respect to such a Lien outweigh the benefit to applicable Intellectual Property filing office in the Secured Parties applicable jurisdiction, in the case of the security afforded therebyclauses (x) and (y), the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject occur substantially concurrently with any acquired entity becoming a Loan Party and (B) each Loan Party shall use its commercially reasonable efforts to a Lien pursuant deliver stock certificates (together with stock powers or equivalent instruments of transfer) representing certificated Equity Interests required to be pledged under this Agreement and the Security Instruments andDocuments (without regard to this clause (g)) as soon as practicable upon the closing of such Permitted Acquisition, (ii) if such real property and in any case no later than the date that is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.60 da
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so 1125931.03I-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.05E-CHISR01A - MSW subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, andor any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (xw) in the case of newly acquired property, within thirty (30) days after the acquisition thereof or, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof in its sole discretion, or (yz) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (Ai) execute and deliver to the consummation by any Credit Party Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplicationperfection and priority of the Lien of the Security Documents against such after-acquired properties.
(b) Subject to Section 2.20, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium to the extent that the Belgian Pledge Exclusion Certification has been delivered to the Administrative Agent by the Administrative Borrower in accordance with the definition of Belgian Pledge Certificate, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), or any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (xX) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days 1125931.03I-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.05E-CHISR01A - MSW after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (Y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (other than property described in each case in form and substance satisfactory clause (X) above) ceased to be Excluded Property, provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion or (byZ) The Parent and immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the Borrower shall promptly cause each applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary or such Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such Drop Down Entity guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion), and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by Applicable Law (in the case of the U.S. Hold Separate Assets, as such requirements of Applicable Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (▇▇▇▇▇, in the case of a(x) Aleris Rolled Products and Aleris Casthouse, a German Borrower, (y) Aleris Switzerland, a Swiss Borrower, and (z) a Subsidiary organized under the laws of the United States or any Guarantor state thereof or the District of Columbia, asubject to clause (j) below, a U.S. Borrower, and deliver any such Joinder Agreement under this clause (z) executed by Aleris or any U.S. Subsidiary of Aleris shall state whether or not such Person constitutes an Individual Aleris U.S. Borrower) and joinder agreements to the original stock certificatesapplicable Security Documents (in each case, if anysubstantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, evidencing in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably 1125931.03I-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.05E-CHISR01A - MSW requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the(other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute and deliver such other additional closing documents, certificates and legal opinions clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as shall reasonably be requested otherwise agreed by the Administrative Agent.
(cany Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary contained hereinin this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 2 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any real propertyGuarantee, if any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent reasonably determines and the Designated Company. As of the Amendment No. 2 Effective Date, each Lender party to Amendment No. 2, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the costsAmendment No. 2 Effective Date, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit expressly consents to the Secured Parties terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence. As a condition to the effectiveness of the joinder of each of Aleris Rolled Products and Aleris Casthouse, to this Agreement as a German Borrower, and the joinder of Aleris Switzerland to this Agreement as a Swiss Borrower, in each case under this Section 5.11(b), the Designated Company shall have delivered an updated Borrowing Base Certificate to the Administrative Agent based on the Borrowing Base Certificates most 1125931.03I-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.05E-CHISR01A - MSW
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property located outside of the United States owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent will notify in its reasonable discretion), as additional security for the Borrower Secured Obligations. Subject to the terms of the Intercreditor Agreement, such determination andMortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, (i) if perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such real property is not then subject manner and in such places as are required by law to a Lien establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Security InstrumentsMortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such real property shall not be required to become subject to a Lien pursuant actions and execute and/or deliver to the Security Instruments and, (ii) if Collateral Agent such real property is already subject to a Lien pursuant to the Security Instruments, documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property located outside of the United States (including a Title Policy (or title opinion reasonably satisfactory to the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property located outside of the United States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan 1125931.03I-▇▇▇▇▇▇▇▇▇▇▇▇▇▇.05E-CHISR01A - MSW Parties shall, upon obtaining not later than 45 days after the consent of the Majority Lenders, release date by which financial statements for such Lien.fiscal quarter are required to be delivered pursuant to this Agreement (or
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (Ai) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (Bii) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent.
(b) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement, which excluded assets shall include all Equity Interests in Midstream MLP owned by any Credit Party), and (ii) each Domestic Subsidiary, other than the Borrower, Subsidiary to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent Borrower shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down EntitySubsidiary, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 1 contract
Sources: Credit Agreement (Rice Energy Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to this Section 6.11 and Section 6.136.14(b), with respect to any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Collateral Documents but is not so subject, the Parent shall promptly notify the Administrative Agent of such acquisition and within forty-five (i45) Within thirty days after the acquisition thereof (30or, with respect to intellectual property, on a quarterly basis) (or such later date as the Administrative Agent may agree) the applicable Loan Party shall (i)execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Collateral Documents or such other documents as the Administrative Agent or the Collateral Agent shall reasonably request to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Lien on such property subject to no Liens other than Liens permitted hereunder; and (ii)take all actions reasonably necessary or advisable to cause such Lien to be duly perfected within the United States to the extent required by such Collateral Document in accordance with all applicable Law, including the filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent. The Borrowers shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of the Collateral Documents on such after acquired properties. For the avoidance of doubt, the forty-five (45) day deadline cited above shall not apply to Material Real Property. Rather, with respect to any Material Real Property acquired after the Closing Date, the relevant Loan Party shall not be required to execute and deliver the relevant Collateral Documents and such other documents as have been reasonably requested by the Administrative Agent or the Collateral Agent until (y) at least forty-five days prior written notice has been provided to the Administrative Agent and (z) the Parent has received confirmation from the Administrative Agent that flood insurance due diligence and flood insurance compliance as required by Section 6.07 hereto has been completed. Subject to Section 6.11(c), as soon as practicable thereafter, but in any event within sixty (60) days (or such longer period not to exceed ninety (90) days later date as the Administrative Agent may agree in its sole discretionagree) after (A) the consummation by any Credit Party of a satisfaction of these requirements with respect to such Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorReal Property, the Borrower relevant Loan Party shall cause the Credit Parties execute and any applicable Drop Down Entity Mortgagor to provide deliver to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that Agent the relevant Collateral Documents and such other documents as have been received or otherwise acquired reasonably requested by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to Agent or the Administrative Collateral Agent.
(b) The With respect to any Person that is or becomes a Subsidiary of Parent and after the Borrower shall promptly cause each Closing Date (iother than any Excluded Subsidiary) Domestic Subsidiary or ceases to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic an Excluded Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty promptly (and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 within forty-five (45) days (or, in the case of clause (ii)(B) below, ninety (90) days) after (I) the acquisition date such Person becomes a Subsidiary or (II) the formation and organization of date Parent delivers to the Administrative Agent financial statements by which it is determined that such Domestic Person ceased to be an Excluded Subsidiary (or other similar event including such later date as the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant Administrative Agent may agree)), (i)deliver to the terms hereof) or of any Drop Down Entity toCollateral Agent the certificates, (A) execute and deliver a supplement to the Guaranty and Collateral Agreementif any, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down EntityLoan Party, together with an appropriate undated stock power for each certificate duly powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the registered owner thereofholder (or holders) of such Equity Interests, and all intercompany notes owing from such Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party (in each case, with respect to Foreign Subsidiaries, to the extent applicable and permitted under foreign laws, rules or regulations) to the extent required to be so delivered under the Security Agreement, if necessary to perfect a Lien under applicable Law, by means of an applicable Collateral Document, to create a Lien on such Equity Interests and intercompany notes in which such perfection is required under the terms of the Security Agreement in favor of the Collateral Agent on behalf of the Secured Parties and (C) ii)cause any such Subsidiary (A)to execute a joinder agreement reasonably acceptable to the Administrative Agent or such comparable documentation to become a Guarantor and a joinder agreement to the applicable Collateral Documents (including the Security Agreement), substantially in the form annexed thereto, (B)to deliver Mortgages of Material Real Property owned by such Subsidiary (and otherwise comply with the requirements set forth in Section 6.11(c)), and (C)to take all other additional closing documents, certificates and legal opinions as shall actions reasonably be requested by the Administrative Agent or the Collateral Agent to cause the Lien created by the applicable Collateral Documents (including the Security Agreement) to be duly perfected within the United States to the extent required by such agreement in accordance with all applicable Law, including the recording of Mortgages and filing of financing statements in such jurisdictions within the United States as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1)no Excluded Subsidiary shall be required to become a Guarantor or otherwise take the actions specified in clause (ii) of this Section 6.11(b), (2)no more than (A) 65% of the total voting power of all outstanding voting stock and (B) 100% of the Equity Interests not constituting voting stock of any CFC or CFC Holdco (except that any such Equity Interests constituting “stock entitled to vote” within the meaning of Treasury Regulation Section 1.956-2(c)(2) shall be treated as voting stock for purposes of this Section 6.11(b)) shall be required to be pledged, (3) no Equity Interests in any Person held by a Foreign Subsidiary shall be required to be pledged, and (4) no Lien or similar interest shall be required to be granted, directly or indirectly, in the assets of any CFC or Foreign Subsidiary or any “Excluded Assets” (as such term is defined in the Security Agreement) (including, for the avoidance of doubt Securitization Assets sold, contributed or otherwise transferred in connection with a Permitted Securitization Financing).
(c) Notwithstanding anything Each Loan Party shall grant to the contrary contained hereinCollateral Agent, within ninety (90) days of the acquisition thereof (or such later date as the Administrative Agent may agree), a security interest in and mortgage in a form reasonably satisfactory to the Administrative Agent and Collateral Agent (a “Mortgage”) on any Material Real Property as additional security for the Obligations (unless the subject property is already mortgaged to a third party to the extent permitted hereunder and a junior lien mortgage is not permitted thereby)). Such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid and enforceable perfected Liens subject only to Liens permitted hereunder. The Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by Law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require, including to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after acquired Real Property (including, to the extent so required, a Title Policy, a Survey, local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) and a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination, together with a notice executed by such Loan Party about special flood hazard area status, if applicable, in respect of such Mortgage).
(d) The foregoing clauses (a) through (c) shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance or surveys with respect to, particular assets if and for so long as (i)in the reasonable judgment of the Administrative Agent and Parent in writing, the cost of creating or perfecting such pledges or security interests in such assets or obtaining title insurance or surveys in respect of such assets shall be excessive in view of the benefits to be obtained by the Lenders therefrom or (ii)such asset constitutes an Excluded Asset (as such term is defined in the Security Agreement). In addition, the foregoing will not require actions under this Section 6.11 by a Person if and to the extent that such action would (a) go beyond the corporate or other powers of the Person concerned (and then only as such corporate or other power cannot be modified or excluded to allow such action); or (b) result in material issues of director’s personal liability, breach of fiduciary duty or criminal liability. The Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with Parent, that perfection cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.
(e) Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit other Loan Document to the Secured Parties of contrary, Liens required to be granted from time to time pursuant to this Section 6.11 shall be subject to exceptions and limitations set forth herein, in the security afforded thereby, the Administrative Agent will notify the Borrower of such determination Collateral Documents and, (i) if such real property is not then subject to a Lien pursuant to the Security Instrumentsextent appropriate in the applicable jurisdiction, such real property as agreed between the Collateral Agent and Parent. Notwithstanding the foregoing provisions of this Section 6.11 or anything in this Agreement or any other Loan Document to the contrary, any Subsidiary of Parent that Guarantees the Senior Secured Notes or the Senior Unsecured Notes shall not be required to become subject to be a Lien pursuant to the Security Instruments and, (ii) if Guarantor hereunder for so long as it Guarantees such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienIndebtedness.
Appears in 1 contract
Sources: Credit Agreement (Uniti Group Inc.)
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case in form and substance satisfactory to the Administrative Agent[Reserved].
(b) The Parent and If the Borrower shall promptly cause each (i) Domestic Subsidiary to be or any other Credit Party becomes the owner of a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Restricted Subsidiary, other than then the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent Borrower shall, or shall cause such Domestic Subsidiary other Credit Party to, promptly, but in any event no later than 15 30 days after the acquisition or the formation and organization date of such Domestic Subsidiary becoming an owner thereof (or other similar event including such longer period as the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity toAdministrative Agent may agree in its discretion), (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (Bi) pledge all 100% of the Equity Interests of such Domestic new Restricted Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the including, without limitation, delivery of original stock certificates, if any, certificates evidencing the Equity Interests of such Domestic Subsidiary and/or new Restricted Subsidiary, together with appropriate undated stock powers for each certificate duly executed in blank by the registered owner thereof) and (ii) execute and deliver such Drop Down Entityother additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. If any Person other than QRI (or, from and after the New Parent Joinder, New Parent) at any time acquires or otherwise possesses any of the Equity Interests issued by the Borrower (including an Intermediate HoldCo), the Borrower shall cause each such Person to promptly, but in any event no later than 30 days after the date of becoming an owner thereof (or such longer period as the Administrative Agent may agree in its discretion), (i) pledge 100% of the Equity Interests in the Borrower owned by such person pursuant to a Pledge Agreement (including, without limitation, delivery of original stock certificates evidencing the Equity Interests of the Borrower, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (Cii) execute and deliver such other additional closing documents, certificates, and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) The Borrower shall cause the following Persons to guarantee the Secured Indebtedness pursuant to the Guaranty Agreement:
(i) each Material Restricted Subsidiary;
(ii) any Person required to guarantee the Secured Indebtedness in order for the Borrower to be in compliance with Section 9.05(b);
(iii) any Person that guarantees any Permitted Additional Debt;
(iv) any Restricted Subsidiary that places a Lien on its Oil and Gas Properties to secure the Secured Indebtedness;
(v) one or more additional Restricted Subsidiaries to the extent necessary to cause (A) the total assets of the Restricted Subsidiaries that are not Guarantors to be less than 15% of the combined assets of the Credit Parties and (B) the combined EBITDAX of such Restricted Subsidiaries to be less than 15% of the combined EBITDAX of the Credit Parties; and
(vi) each Intermediate HoldCo, New Parent and, following the occurrence of a Qualified IPO, any subsequent direct owner of Equity Interests in the Borrower.
(d) In connection with any guaranty required by Section 8.13(c), the Borrower shall, or shall cause such Subsidiary or other Person to promptly, but in any event no later than 30 days (or such longer period as the Administrative Agent may agree in its discretion) after the event requiring such guaranty, execute and deliver (i) a supplement to the Guaranty Agreement and (ii) such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
. If at any time any Person is not otherwise required to guarantee the Secured Indebtedness hereunder (c) Notwithstanding anything whether pursuant to the contrary contained hereinother provisions of this Section 8.13 or otherwise) or under any other Loan Document, then upon receipt by the Administrative Agent of evidence satisfactory to it that such Person has been fully and finally released from its guarantee obligations in respect of any Permitted Additional Debt, such Person shall be released from its guarantee obligations with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, Indebtedness and the Administrative Agent shall, upon obtaining at the consent sole cost and expense of the Borrower, execute such further documents and do all such further acts so as to reasonably evidence such release.
(e) If a Default or Event of Default has occurred and is continuing and the Majority LendersLenders consider it necessary for their adequate protection, release the Borrower, at the request of the Administrative Agent, will forthwith grant or cause to be granted to the Administrative Agent for the benefit of the Secured Parties, a fixed Lien (subject only to Permitted Liens) in such Lienof the applicable Credit Party’s property as the Administrative Agent, in its sole discretion, determines as security for all then present and future Secured Indebtedness of the Credit Parties to the Secured Parties. In this connection, the Borrower will, and will cause each other Credit Party to:
(i) provide the Administrative Agent with such information as is reasonably required by the Administrative Agent to identify the property to be charged pursuant to this Section 8.13(e);
(ii) do all such things as are reasonably required to grant, or cause such Credit Party to grant, in favor of the Agent, the Secured Parties, a fixed Lien (subject only to Permitted Liens) in respect of such property to be so charged pursuant to this Section 8.13(e);
(iii) provide the Administrative Agent with all corporate or partnership resolutions and other action, as reasonably required, for any Credit Party to grant the fixed Lien (subject only to Permitted Liens) in the property identified by the Administrative Agent to be so charged;
(iv) provide the Administrative Agent with such security instruments and other documents which the Administrative Agent, acting reasonably, deems are necessary to give full force and effect to the provisions of this Section 8.13(e);
(v) assist the Administrative Agent in the registration or recording of such agreements and instruments in such public registry offices in Canada or any province thereof or any other jurisdiction as the Administrative Agent, acting reasonably, deems necessary to give full force and effect to the provisions of this Section 8.13(e); and
(vi) pay all reasonable costs and expenses incurred by the Administrative Agent in connection with the preparation, execution and registration of all agreements, documents and instruments made in connection with this Section 8.13(e).
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party In connection with each delivery of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity MortgagorReserve Report hereunder, the Borrower shall review such Reserve Report and the Oil and Gas Properties subject to a Mortgage as of the date of such Reserve Report. If the aggregate value of the Oil and Gas Properties constituting Proved Reserves subject to a valid, perfected and first-priority Mortgage is less than the Required Mortgage Value, then the Parent and the Borrower shall, and shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide Restricted Subsidiaries to, grant within 30 days of the delivery of the most recent Reserve Report to the Administrative AgentAgent as security for the Indebtedness a valid, without duplicationperfected and first-priority Lien on additional Oil and Gas Properties constituting Proved Reserves to the extent necessary to cause the aggregate value of the Oil and Gas Properties subject to a valid, copies perfected and first-priority Mortgage to equal or exceed the Required Mortgage Value (provided that Excepted Liens of all recorded Deeds and/or Rights the type described in clauses (a) to (d), (f) and (l) of Way with respect the definition thereof may exist on such Mortgage Properties, but subject to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result the provisos at the end of such Material Acquisition or during definition). All such period, as applicable, Liens will be created and to execute perfected by and deliver mortgages in accordance with the provisions of Mortgages or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative Agent. Any Restricted Subsidiary that creates a Lien on its Oil and Gas Properties shall become a Guarantor in accordance with Section 8.14(b).
(b) The Parent and the Borrower shall promptly cause each Material Subsidiary formed or acquired after the Effective Date (i) Domestic and each Restricted Subsidiary that subjects an Oil and Gas Property to be a party to the Guaranty and Collateral Agreement Mortgage pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral AgreementSection 8.14(a), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations Indebtedness pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingany such guaranty, the Parent shall, or and the Borrower shall (i) cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement Joinder Agreement pursuant to which such Subsidiary becomes a party to the Guaranty Agreement and Collateral Agreementbecomes a Guarantor, executed by such Domestic Subsidiary, and (B) pledge execute and deliver a Joinder Agreement pursuant to which such Subsidiary becomes a party to the Security Agreement and grants a valid, perfected and first- priority security interest (provided that Excepted Liens of the type described in clause (1) of the definition thereof may exist) in substantially all of its personal Property to the extent required by the Security Agreement and each other applicable Security Instrument (including the filing of financing statements), and (ii) execute and deliver (or, if the direct parent of such Subsidiary is not the Parent or the Borrower, cause such Subsidiary’s direct parent to execute and deliver) a Security Agreement Supplement pursuant to which the applicable Loan Party will grant a valid, perfected and first-priority security interest (provided that Excepted Liens of the type described in clause (1) of the definition thereof may exist) in all of the Equity Interests of in such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and will, without limitation, deliver the original stock certificates, certificates (if any, ) evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down EntitySubsidiary, together with an appropriate undated stock power powers (or the equivalent for any such Subsidiary that is not a corporation) for each certificate duly executed in blank by the registered owner thereof) to the Administrative Agent or the Revolving Loan Agent as bailee for the Administrative Agent pursuant to the Intercreditor Agreement (provided that, in the event that the direct parent of such Subsidiary is not a Guarantor, the requirements in this Section 8.14(b) shall also apply to (and with respect to the Equity Interests in) such Subsidiary’s parent).
(Cc) [Reserved]
(d) In the event that any Loan Party acquires any material Property (other than any Oil and Gas Property and any Property in which a security interest is automatically created under the Security Agreement or other pre-existing Security Instrument) after the Effective Date, the Parent and the Borrower shall, or shall cause such other Loan Party to, give the Administrative Agent prompt written notice thereof and execute and deliver any Security Instruments reasonably required by the Administrative Agent in order to create a valid, perfected and first-priority security interest and Lien therein to the extent required by the applicable Security Instruments (provided that Excepted Liens of the type described in clause (l) of the definition thereof may exist).
(e) [Reserved]
(f) [Reserved]
(g) In furtherance of the foregoing in this Section 8.14, each Loan Party (including any newly created or acquired Material Subsidiary and any other Restricted Subsidiary referred to in Section 8.14(a)) shall execute and deliver (or otherwise provide, as applicable) to the Administrative Agent such other additional closing Security Instruments, documents, certificates and certificates, legal opinions opinions, title insurance policies, surveys, abstracts, appraisals, environmental assessments, flood information and/or flood insurance policies, in each case as shall may be reasonably be requested by the Administrative Agent and as reasonably satisfactory to the Administrative Agent.
(ch) Each of the Parent and the Borrower agrees that it will not, and will not permit any other Guarantor to, ▇▇▇▇▇ ▇ ▇▇▇▇ on any Property to secure the Permitted Revolving Debt without contemporaneously granting to the Administrative Agent, as security for the Indebtedness, an equal priority, perfected Lien (provided that Excepted Liens of the type described in clauses (a) to (d), (f) and (l) of the definition thereof may exist, but subject to the provisos at the end of such definition) on the same Property pursuant to Security Instruments in form and substance reasonably satisfactory to the Administrative Agent.
(i) The Parent and the Borrower will cause any Subsidiary required to guarantee (or that otherwise becomes a guarantor under) the Permitted Revolving Debt that is not required to guarantee the Indebtedness pursuant to this Agreement or any other Loan Document (and that does not otherwise guarantee the Indebtedness) to become a Guarantor hereunder and to guarantee the Indebtedness by executing and delivering a Joinder Agreement contemporaneously with such Subsidiary becoming a guarantor with respect to the Permitted Revolving Debt.
(j) Notwithstanding anything to the contrary contained herein, with respect to herein or in any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded therebyother Loan Documents, the Administrative Agent will notify SPV Subsidiaries shall not be required to guarantee the Borrower of such determination and, (i) if such real property is not then subject to a Lien Indebtedness pursuant to the Security Instruments, such real property this Agreement or any other Loan Document and shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienGuarantors hereunder.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) In connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties (ias described in Section 8.12(d)) Within thirty to ascertain whether the Mortgaged Properties represent at least 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report, after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties represent less than 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report delivered to the Administrative Agent and the Collateral Agent, then the Borrower shall, and shall cause each of its Restricted Subsidiaries to, grant, within sixty (3060) days (or such longer period not to exceed ninety (90) days later date as the Administrative Agent may agree to in its sole discretion) of the delivery of the Reserve Report Certificate, to the Collateral Agent or its designee as security for the Secured Obligations a first-priority Lien interest (subject to Liens permitted by Section 9.03 which may attach to Mortgaged Property) on additional Oil and Gas Properties of the Borrower and the Restricted Subsidiaries not already subject to a Lien of the Security Instruments such that after (A) giving effect thereto, the consummation value of the Mortgaged Properties is equal to or greater than 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in such Reserve Report. All such Liens will be created and perfected by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests and in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning accordance with the period beginning on provisions of the date hereof Guaranty and ending on June 30Collateral Agreement, 2015deeds of trust, mortgages, security agreements and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such period, as applicable, and to execute and deliver mortgages financing statements or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative AgentCollateral Agent or its designee and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the foregoing, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.14(b).
(b) The Parent and the Borrower shall promptly cause each Material Subsidiary (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, an Excluded Subsidiary or Immaterial Subsidiary) to become a Guarantor and guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingany such guaranty, the Parent Borrower shall, or shall cause such Domestic Subsidiary the Restricted Subsidiaries to, promptly, but in any event no later than 15 days (or such later date as the Administrative Agent may agree to in its sole discretion) after the formation or acquisition or the formation and organization of such Domestic Subsidiary (or other similar event event, including an Immaterial Subsidiary becoming a Material Subsidiary or upon the redesignation designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereofSubsidiary) or of any Drop Down Entity Material Subsidiary (other than an Excluded Subsidiary or Immaterial Subsidiary) to, (Ai) cause such Material Subsidiary to execute and deliver a joinder and supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (Bii) (A) pledge all of the Equity Interests issued by such Material Subsidiary and (B) cause such Material Subsidiary to pledge all of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests directly owned by such Material Subsidiary in its respective Subsidiaries (including, without limitation, delivery of original stock certificates evidencing such Domestic Subsidiary and/or such Drop Down EntityEquity Interests, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); provided, that such pledge shall be limited to (x) 65% of the voting Equity Interests in any Excluded Subsidiary described in clauses (a) or (b) of the definition thereof and (Cy) 0% of the Equity Interests in any Excluded Subsidiary described in clauses (c) or (d) of the definition thereof, and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative AgentCollateral Agent or its designee.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) In connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties (ias described in Section 8.12(c)(vi)) Within thirty to ascertain whether the Mortgaged Properties represent at least 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report, after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties represent less than 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in the most recently completed Reserve Report delivered to the Administrative Agent, then the Borrower shall, and shall cause each of its Restricted Subsidiaries to, grant, within sixty (3060) days (or such longer period not to exceed ninety (90) days later date as the Administrative Agent may agree to in its sole discretion) after (A) of the consummation by any Credit Party delivery of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31the Reserve Report Certificate, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative AgentAgent or its designee as security for the Secured Obligations a first-priority Lien interest (subject to Liens permitted by Section 9.03 which may attach to Mortgaged Property) on additional Oil and Gas Properties of the Borrower and the Restricted Subsidiaries not already subject to a Lien of the Security Instruments such that after giving effect thereto, without duplicationthe value of the Mortgaged Properties is equal to or greater than 85% of the total value of the proved Oil and Gas Properties of the Borrower and the Restricted Subsidiaries evaluated in such Reserve Report. All such Liens will be created and perfected by and in accordance with the provisions of the Guaranty and Collateral Agreement, copies deeds of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result of such Material Acquisition or during such periodtrust, as applicablemortgages, security agreements and to execute and deliver mortgages financing statements or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative AgentAgent or its designee and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. In order to comply with the foregoing, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.14(b).
(b) The Parent and the Borrower shall promptly cause each Material Subsidiary (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, an Excluded Subsidiary or Immaterial Subsidiary) to become a Guarantor and guarantee the Secured Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingany such guaranty, the Parent Borrower shall, or shall cause such Domestic Subsidiary the Restricted Subsidiaries to, promptly, but in any event no later than 15 days (or such later date as the Administrative Agent may agree to in its sole discretion) after the formation or acquisition or the formation and organization of such Domestic Subsidiary (or other similar event event, including an Immaterial Subsidiary becoming a Material Subsidiary or upon the redesignation designation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereofSubsidiary) or of any Drop Down Entity Material Subsidiary (other than an Excluded Subsidiary or Immaterial Subsidiary) to, (Ai) cause such Material Subsidiary to execute and deliver a joinder and supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (Bii) (A) pledge all of the Equity Interests issued by such Material Subsidiary and (B) cause such Material Subsidiary to pledge all of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests directly owned by such Material Subsidiary in its respective Subsidiaries (including, without limitation, delivery of original stock certificates evidencing such Domestic Subsidiary and/or such Drop Down EntityEquity Interests, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof); provided, that such pledge shall be limited to (x) 65% of the voting Equity Interests in any Excluded Subsidiary described in clauses (a) or (b) of the definition thereof and (Cy) 0% of the Equity Interests in any Excluded Subsidiary described in clauses (c) or (d) of the definition thereof (unless such Equity Interests are pledged to secure any Permitted Second Lien Notes or any Permitted Refinancing Debt thereof), and (iii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative AgentAgent or its designee.
(c) Notwithstanding anything In the event that the Borrower or any Subsidiary intends to grant any Lien on any Property to secure any Permitted Second Lien Notes or any Permitted Refinancing Debt thereof, the contrary contained herein, with respect Borrower will provide at least five (5) Business Days’ prior written notice thereof to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining (or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, shorter time as the Administrative Agent will notify may agree in its sole discretion), and the Borrower of will, and will cause its Subsidiaries to, first (or contemporaneously therewith) grant to the Administrative Agent to secure the Secured Obligations a first-priority Lien on the same Property (unless the Administrative Agent declines such determination andLien), (i) if pursuant to Security Instruments in form and substance satisfactory to the Administrative Agent, to the extent a prior Lien has not already been granted to the Administrative Agent on such real property is not then subject Property. In connection therewith, the Borrower shall, or shall cause its Subsidiaries to, execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. The Borrower will cause any Subsidiary and any other Person guaranteeing any Permitted Second Lien Notes or any Permitted Refinancing Debt to a Lien contemporaneously guarantee the Secured Obligations pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienGuaranty and Collateral Agreement.
Appears in 1 contract
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof in its sole discretion, or (z) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming 1096351.01A-CHISR01A1096355.04J-CHISR01A - MSW a Specified Aleris Subsidiary) (Ai) execute and deliver to the consummation by any Credit Party Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplicationperfection and priority of the Lien of the Security Documents against such after-acquired properties.
(b) Subject to Section 2.20, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium to the extent that the Belgian Pledge Exclusion Certification has been delivered to the Administrative Agent by the Administrative Borrower in accordance with the definition of Belgian Pledge Certificate, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (X) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (Y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (X) The Parent and above) ceased to be Excluded Property, provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period in its sole discretion or (Z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary or such Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and 1096351.01A-CHISR01A1096355.04J-CHISR01A - MSW delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such Drop Down Entity guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion), and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by Applicable Law (in the case of the U.S. Hold Separate Assets, as such requirements of Applicable Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (and, in the case of (y) Aleris Rolled Products and Aleris Casthouse, a German Borrower, and (z) a Subsidiary organized under the laws of the United States or any Guarantor state thereof or the District of Columbia, subject to clauses (j) and deliver (k) below, a U.S. Borrower, and any such Joinder Agreement under this clause (z) executed by Aleris or any U.S. Subsidiary of Aleris shall state whether or not such Person constitutes an Individual Aleris U.S. Borrower) and joinder agreements to the original stock certificatesapplicable Security Documents (in each case, if anysubstantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, evidencing in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such 1096351.01A-CHISR01A1096355.04J-CHISR01A - MSW anti-assignment or negative pledge clause is enforceable under Applicable Law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 2 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Designated Company. As of the Amendment No. 2 Effective Date, each Lender party to Amendment No. 2, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Amendment No. 2 Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence. As a condition to the effectiveness of the joinder of each of Aleris Rolled Products and Aleris Casthouse, to this Agreement as a German Borrower, in each case under this Section 5.11(b), the Designated Company shall have delivered an updated Borrowing Base Certificate to the Administrative Agent based on the Borrowing Base Certificates most recently delivered pursuant to this Agreement, which Borrowing Base Certificate shall also demonstrate the effect of the inclusion of the Eligible Accounts and Eligible Inventory owned by such Person on the Total Borrowing Base and such German Borrower’s Borrowing Base.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent) (or immediately in connection with respect the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property located outside of the United States owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15,000,000 (unless the subject property is already mortgaged to any real propertya third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, if as determined by the Administrative 1096351.01A-CHISR01A1096355.04J-CHISR01A - MSW Agent in its reasonable discretion), as additional security for the Secured Obligations. Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent reasonably determines that and the costsCollateral Agent and shall constitute valid, financial perfected and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect enforceable First Priority Liens subject only to such a Lien outweigh the benefit Permitted Liens. Subject to the Secured Parties terms of the security afforded therebyIntercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent will notify or the Borrower Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such determination and, after-acquired Real Property located outside of the United States (i) if such real property is not then subject to including a Lien pursuant Title Policy (or title opinion reasonably satisfactory to the Security InstrumentsCollateral Agent), such real property shall not be required a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining and the consent Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property located outside of the Majority LendersUnited States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, release such Lien.at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5%
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity Mortgagor Specified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Collateral 1160381.015-CHISR02A - MSW Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (x) The Parent and above) ceased to be Excluded Property; provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period or (z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary and/or or such Drop Down Entity Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (in the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or any such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and deliver compatible with the original stock certificateslaws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, if anyand (B) to take all actions necessary or advisable in the opinion of the Administrative 1160381.015-CHISR02A - MSW Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, evidencing including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Borrower. As of the Second Amendment Effective Date, each Lender party to the Second Amendment, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Second Amendment Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60i) days of the acquisition thereof or, in the case of property that 1160381.015-CHISR02A - MSW is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property, (orii) in the case of the plant in Guthrie, Kentucky owned by Novelis Corporation, within sixty (60) days after the first day on which construction is completed and the plant is operational, and (iii) otherwise, within sixty (60) days of the acquisition thereof (in each case, or such later date agreed by the Administrative Agent) (or immediately in connection with respect the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already mortgaged to any real propertya third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, if as determined by the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit in its reasonable discretion). Subject to the Secured Parties terms of the security afforded therebyIntercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent will notify and the Borrower Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such determination andmanner and in such places as are required by law to establish, (i) if such real property is not then subject perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to a Lien be granted pursuant to the Security InstrumentsMortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such real property shall not be required actions and execute and/or deliver to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, upon obtaining not later than 45 days after the consent date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Majority LendersPermitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral 1160381.015-CHISR02A - MSW Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such LienPerson.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at an
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity Mortgagor Specified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (x) The Parent and above) ceased to be Excluded Property; provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period or (z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary and/or or such Drop Down Entity Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (in the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or any such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and deliver compatible with the original stock certificateslaws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, if anyand (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, evidencing including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Borrower. As of the Second Amendment Effective Date, each Lender party to the Second Amendment, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Second Amendment Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit promptly grant to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination andCollateral Agent, (i) if in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such real property is not then subject ceases to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments andExcluded Property, (ii) if in the case of the plant in Guthrie, Kentucky owned by Novelis Corporation, within sixty (60) days after the first day on which construction is completed and the plant is operational, and (iii) otherwise, within sixty (60) days of the acquisition thereof (in each case, or such real later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already subject mortgaged to a Lien third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Security InstrumentsMortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, upon obtaining not later than 45 days after the consent date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Majority LendersPermitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such LienPerson.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement, each applicable Holdings Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter has ceased to be Excluded Property, promptly (and in any event (x) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, or (or such longer period not to exceed ninety y) in the case of any other property that was Excluded Property, within thirty (9030) days as after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (x) and (y), the Administrative Agent may agree to an extension thereof in its sole discretion, or (z) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, and the MEA Re-Domiciliation (A) except in the consummation by case of the notarization of any Credit Party of a Material Acquisition (other than any acquisition of pledge over Equity Interests in the Dubai Guarantor, which shall be completed as soon as reasonably practicable following the MEA Re-Domiciliation)) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Drop Down Entity Mortgagor) and (B) each semi-annual period ending First Priority Lien on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015such property subject to no Liens other than Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the 232 1254948.01A-CHISR02A1306028.06-NYCSR02A - MSW Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary after the Closing Date (other than (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), or any property that ceases to be Excluded Property, promptly (and in any event within thirty (30) days after the end of the fiscal quarter in which such Person becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property ceased to be Excluded Property, provided that the Administrative Agent may agree to an extension of such time period in its sole discretion) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests were acquired) as a result of such Material Acquisition Restricted Subsidiary owned by a Loan Party, together with undated stock powers or during other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such periodEquity Interests, and (x) at any time prior to the Discharge of Term Loan Secured Obligations (as defined in the Intercreditor Agreement), all intercompany notes constituting or intended to constitute Specified Revolving Intercompany Notes of Subsidiaries (as defined in the Intercreditor Agreement)) owing from such Restricted Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (y) at any time after the Discharge of Term Loan Secured Obligations (as defined in the Intercreditor Agreement), all intercompany notes owing from such Restricted Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary that is a Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law, including any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, and as determined by the Administrative Agent in its reasonable discretion), in each case to the extent not prohibited by Applicable Law, (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (and, in the case of a Subsidiary organized under the laws of the United States or any state thereof or the District of Columbia, subject to clauses (j) and deliver mortgages (k) below, a U.S. Borrower) and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable Security Instruments filings) in such jurisdictions as may be reasonably requested by 233 1254948.01A-CHISR02A1306028.06-NYCSR02A - MSW the Administrative Agent or the Collateral Agent, and (C) in the case of a Subsidiary that ceases to be an Excluded Collateral Subsidiary, to deliver to the Administrative Agent a supplement to Schedule 1.01(e) removing such Subsidiary from such Schedule. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 10 to the extent any requirement of Applicable Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Lien on such Midstream PropertiesEquity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), Deeds and/or Rights (y) any Joint Venture Subsidiary, to the extent the terms of Way any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 10 to the extent any requirement of Applicable Law prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 10 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Designated Company. As of the Amendment No. 10 Effective Date, each Lender party to Amendment No. 10, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Amendment No. 10 Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent), a security interest in and Mortgage on each Material Real Estate Asset (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion), as additional security for the Secured Obligations. Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, 234 1254948.01A-CHISR02A1306028.06-NYCSR02A - MSW perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property located outside of the United States (including a Title Policy (or title opinion reasonably satisfactory to the Collateral Agent), a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property located outside of the United States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA (Leverage) of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement, cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Administrative Borrower may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Management System or the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall either (x) execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent or (y) or execute a stand-alone U.S. Security Agreement covering such deposit account and related assets, or such property and related assets, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(bf) The Parent and Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the Borrower contrary, in no event shall promptly cause each this Section 5.11 or such 235 1254948.01A-CHISR02A1306028.06-NYCSR02A - MSW Loan Document obligate any Loan Party to (i) Domestic Subsidiary ▇▇▇▇▇ ▇ ▇▇▇▇ to the Collateral Agent on any Excluded Property or (ii) take any perfection steps with respect to any Excluded Property.
(g) Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document (other than the definitions of Eligible Accounts, Eligible Inventory, Reserves or any other provisions related to Excess Availability or the eligibility of any assets to be a party included in any Borrowing Base) to the Guaranty and contrary, in no event shall this Section 5.11 or such Loan Document require (i) to the extent creation of a security interest in a specific asset (other than a deposit account, a securities account or a commodities account) requires that such asset be described with specificity in the applicable Security Document or filing (including, for example, a list of specific items of Inventory with identification numbers, or descriptions of commercial tort claims), the creation of the Collateral Agreement pursuant Agent’s security interest in such assets, to which such Domestic Subsidiary will grant Liens and security interests the extent acquired in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)a Permitted Acquisition, and (ii) Domestic Subsidiarythe perfection of the Collateral Agent’s security interest in assets acquired in a Permitted Acquisition, other than in the Borrowercase of clauses (i) and (ii), to guarantee until the Obligations date that is 60 days after the closing date for such Permitted Acquisition (or such later date as is otherwise permitted pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, other clauses of this Section 5.11 or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested otherwise agreed by the Administrative Agent.
); provided that (cA) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, perfection of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.securi
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) (i) Within thirty (30) days (or In connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report prepared in connection with such longer period not redetermination pursuant to exceed ninety (90) days Section 8.11 and the Oil and Gas Properties subject to a Mortgage as of the Administrative Agent may agree in its sole discretion) after (A) date of such Reserve Report. If the consummation by any Credit Party aggregate value of the Oil and Gas Properties subject to a Material Acquisition Mortgage is less than the Required Mortgage Value, then the Borrower shall, and shall cause the Restricted Subsidiaries (other than any acquisition Foreign Subsidiaries) to, grant within 30 days of Equity Interests the delivery of the certificate referred to in a Drop Down Entity MortgagorSection 8.11(b) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative AgentAgent as security for the Indebtedness a second-priority Lien (provided that Excepted Liens may exist, without duplication, copies of all recorded Deeds and/or Rights of Way with respect but subject to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result the proviso at the end of such Material Acquisition definition) on additional Oil and Gas Properties to the extent necessary to cause the aggregate value of the Oil and Gas Properties subject to a Mortgage to equal or during exceed the Required Mortgage Value. All such period, as applicable, Liens will be created and to execute perfected by and deliver mortgages in accordance with the provisions of Mortgages or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative Agent. Any Restricted Subsidiary (other than a Foreign Subsidiary) that creates a Lien on its Oil and Gas Properties shall become a Guarantor in accordance with Section 8.13(b).
(b) The Parent and the Borrower shall promptly cause each Material Subsidiary (i) Domestic Subsidiary to be a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than a Foreign Subsidiary) formed or acquired after the Borrower, Effective Date to guarantee the Obligations Indebtedness pursuant to the Guaranty and Collateral Agreement. In connection with the foregoingany such guaranty, the Parent shall, or Borrower shall (i) cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Material Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as than a Restricted Subsidiary pursuant Foreign Subsidiary) to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement Joinder Agreement pursuant to which such Material Subsidiary becomes a party to the Guaranty Agreement and Collateral Agreementbecomes a Guarantor, executed by such Domestic Subsidiary, and (B) pledge execute and deliver a Joinder Agreement pursuant to which such Material Subsidiary becomes a party to the Security Agreement and grants a second-priority security interest in substantially all of its personal Property, and (ii) execute and deliver (or, if the direct parent of such Material Subsidiary is not the Borrower, cause such Material Subsidiary’s direct parent to execute and deliver) a Security Agreement Supplement pursuant to which the applicable Loan Party will grant a second-priority security interest in all of the Equity Interests of in such Domestic Material Subsidiary and/or such Drop Down Entity that are owned by to the Borrower or any Guarantor Collateral Agent (and will, without limitation, deliver the original stock certificates, certificates (if any, ) evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down EntityMaterial Subsidiary, together with an appropriate undated stock power powers (or the equivalent for any such Material Subsidiary that is not a corporation) for each certificate duly executed in blank by the registered owner thereofthereof to the First Lien Agent as bailee for the Collateral Agent).
(c) In the event that the Borrower or any Material Subsidiary (other than a Foreign Subsidiary) becomes a partner or member in a Designated Partnership or acquires additional interests in a Designated Partnership, the Borrower shall, or shall cause such Material Subsidiary to, grant a second-priority security interest in all the Equity Interests owned by such Person in such Designated Partnership.
(d) In the event that any Loan Party acquires any material Property (other than any Oil and (CGas Property, any Property in which a security interest is created under the Security Agreement) after the Effective Date, the Borrower shall, or shall cause such other Loan Party to, execute and deliver any Security Instruments reasonably required by the Collateral Agent in order to create a second-priority security interest and Lien in such Property; provided that any security interest in the Equity Interests in a Foreign Subsidiary shall not exceed 65% of the voting stock and 100% of the nonvoting stock of such Foreign Subsidiary.
(e) In the event that any Loan Party makes any loans to any Designated Partnership, such Loan Party shall collaterally assign such Loan Party’s interests in such loans to the Administrative Agent for the benefit of the Lenders to secure the Indebtedness on the terms and conditions set forth in the Security Agreement.
(f) In the event that any Loan Party withdraws its ownership interest in a Participating Partnership in the form of a working interest in the production from the Oil and Gas Properties of such Participating Partnership at the direction of the Required Lenders pursuant to Section 10.02(a), such Loan Party shall, substantially contemporaneously with such withdrawal, grant to the Administrative Agent as security for the Indebtedness a second-priority Lien (provided that Excepted Liens may exist, but subject to the proviso at the end of such definition) on such Oil and Gas Properties. All such Liens will be created and perfected by and in accordance with the provisions of Mortgages or other additional closing documentsSecurity Instruments, certificates all in form and legal opinions as shall substance reasonably be requested by satisfactory to the Administrative Agent.
(cg) Notwithstanding anything The Borrower agrees that it will not, and will not permit any Guarantor to, ▇▇▇▇▇ ▇ ▇▇▇▇ on any Property to secure the First Lien Debt without contemporaneously granting to the contrary contained hereinAdministrative Agent, with respect as security for the Indebtedness, a second priority, perfected Lien (provided that Excepted Liens may exist, but subject to the proviso at the end of such definition) on the same Property pursuant to Security Instruments in form and substance reasonably satisfactory to the Administrative Agent.
(h) The Borrower will cause any real propertySubsidiary guaranteeing the First Lien Debt that is not guaranteeing the Indebtedness to contemporaneously become a Guarantor by executing and delivering a Joinder Agreement.
(i) In furtherance of the foregoing in this Section 8.13, if each Loan Party (including any newly created or acquired Material Subsidiary (other than a Foreign Subsidiary)) shall execute and deliver (or otherwise provide, as applicable) to the Administrative Agent such other additional Security Instruments, documents, certificates, legal opinions, title insurance policies, surveys, abstracts, appraisals, environmental assessments, flood information and/or flood insurance policies, in each case as may be reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, requested by the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant and as reasonably satisfactory to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienAgent.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Atlas Resource Partners, L.P.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within thirty (30) days (or such longer period not to exceed ninety (90) days as any property acquired after the Administrative Agent may agree in its sole discretion) after (A) the consummation Closing Date by any Credit Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Material Acquisition Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently 197 1031947.12E-CHISR1060441.10-CHISR01A - MSW
(b) With respect to any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than any acquisition of Equity Interests in (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity MortgagorSpecified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (Byz) each semi-annual period ending on June 30 or December 31a Securitization Entity) or, beginning with any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the period beginning on end of the date hereof and ending on June 30most recently ended fiscal quarter, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant has ceased to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative Agent, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event within (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (other than property described in each case in form and substance satisfactory clause (x) above) ceased to be Excluded Property; provided that the Administrative Agent.
Agent may agree to an extension of such time period or (byz) The Parent and immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with 198 1031947.12E-CHISR1060441.10-CHISR01A - MSW the Borrower shall promptly cause each applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary and/or or such Drop Down Entity Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (in the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or any such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and deliver compatible with the original stock certificateslaws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, if anyand (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, evidencing including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), together with an appropriate undated stock power for each certificate duly executed (y) any Joint Venture Subsidiary, to the extent the 199 1031947.12E-CHISR1060441.10-CHISR01A - MSW
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in blank by the registered owner thereofcase of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) and days after the date such property ceases to be Excluded Property (C) execute and deliver or such other additional closing documents, certificates and legal opinions as shall reasonably be requested later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to 200 1031947.12E-CHISR1060441.10-CHISR01A - MSW
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(ce) Notwithstanding anything to Any Foreign Subsidiary that is a Loan Party that has in the contrary contained herein, with respect to United States at any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, time (i) if such real property a deposit account that is not then subject to a Lien pursuant to part of the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, Cash Pooling Arrangements or (ii) if property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such real property is already subject to foreign Loan Party, shall execute a Lien pursuant joinder agreement to the U.S. Security Instruments, Agreement reasonably satisfactory to the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such LienAgent.
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (x) within thirty (30) days (after the acquisition thereof or after the date such longer period not property ceases to exceed ninety (90) days as be Excluded Property; provided that the Administrative Agent may agree to an extension thereof or (y) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause 967770.02F-CHISR1034077.05-CHISR01A - MSW 172 such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that, other than with respect to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagoreach Specified Aleris Subsidiary, the Borrower actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (x) an Excluded Collateral Subsidiary and (y) a Securitization Entity) or any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, promptly (and in which any event within (x) thirty (30) days after such Person becomes a Restricted Subsidiary or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d); provided that the Administrative Agent may agree to an extension of such time period or (y) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests were acquired) as a result of such Material Acquisition Restricted Subsidiary or during such periodSpecified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law, (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to execute and deliver mortgages take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens 967770.02F-CHISR1034077.05-CHISR01A - MSW 173 created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable Security Instruments filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary to the extent that the pledge or perfection of a Lien on such Midstream PropertiesEquity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), Deeds and/or Rights (y) any Joint Venture Subsidiary, to the extent the terms of Way any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Borrower. As of the Second Amendment Effective Date, each Lender party to the Second Amendment, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Second Amendment Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof (or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, 967770.02F-CHISR1034077.05-CHISR01A - MSW 174 such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in each case the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(bf) The Parent and Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the Borrower contrary, in no event shall promptly cause each this Section 5.11 or such Loan Document obligate 967770.02F-CHISR1034077.05-CHISR01A - MSW 175 any Loan Party to (i) Domestic Subsidiary to be a party ▇▇▇▇▇ ▇ ▇▇▇▇ to the Guaranty and Collateral Agreement pursuant Agent on any Excluded Property or (ii) take any perfection steps with respect to which any Excluded Property.
(g) Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the contrary, in no event shall this Section 5.11 or such Domestic Subsidiary will grant Liens and Loan Document obligate any Loan Party to (i) to the extent creation of a security interests interest in substantially all a specific asset requires that such asset be described with specificity in the applicable Security Document or filing (including, for example, a list of its personal property (excluding specific items of Inventory with identification numbers, or descriptions of commercial tort claims), the assets excluded from creation of the “Collateral” under Collateral Agent’s security interest in such assets, to the Guaranty and Collateral Agreement)extent acquired in a Permitted Acquisition, and (ii) Domestic Subsidiarythe perfection of the Collateral Agent’s security interest in assets acquired in a Permitted Acquisition, other than in the Borrower, to guarantee case of clauses (i) and (ii) shall not be required until the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 date that is 60 days after the acquisition or the formation and organization of closing date for such Domestic Subsidiary Permitted Acquisition (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested later date agreed by the Administrative Agent.
); provided that (cA) Notwithstanding anything to the contrary contained herein, perfection of a security interest in Collateral with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting which a Lien and/or complying may be perfected by (x) the filing of financing statements under the UCC or equivalent filing system in a non-U.S. jurisdiction, or (y) filing short form security agreements or other filings with all Governmental Requirements with respect to such a Lien outweigh the benefit to applicable Intellectual Property filing office in the Secured Parties applicable jurisdiction, in the case of the security afforded therebyclauses (x) and (y), the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject occur substantially concurrently with any acquired entity becoming a Loan Party and (B) each Loan Party shall use its commercially reasonable efforts to a Lien pursuant to the Security Instruments and, deliver stock certificates (iitogether with stock powers or equivalent instruments of transfer) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.representing certificated Equity Interests requ
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof in its sole discretion, or (z) after immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (Ai) execute and deliver to the consummation by any Credit Party Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its benefit and for the benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with Applicable Law, including the filing of any Permitted Acquisition pursuant financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Borrowers shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent 1160299.01-CHISR1160299.03H-CHISR02A - MSW or the Collateral Agent shall reasonably require to confirm the validity, without duplicationperfection and priority of the Lien of the Security Documents against such after-acquired properties.
(b) Subject to Section 2.20, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is becomes a Drop Down Entity Mortgagor Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium to the extent that the Belgian Pledge Exclusion Certification has been delivered to the Administrative Agent by the Administrative Borrower in accordance with the definition of Belgian Pledge Certificate, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (X) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (Y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (X) The Parent and above) ceased to be Excluded Property, provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period in its sole discretion or (Z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary or such Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any requirement of Applicable Law relating to financial assistance, maintenance of capital and/or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such Drop Down Entity guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion), and any such Specified Aleris Subsidiary, 1160299.01-CHISR1160299.03H-CHISR02A - MSW in each case to the extent not prohibited by Applicable Law (in the case of the U.S. Hold Separate Assets, as such requirements of Applicable Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor (and, in the case of (xy) Aleris Rolled Products and Aleris Casthouse, a German Borrower, (y) Aleris Switzerland, a Swiss Borrower, and (z) a Subsidiary organized under the laws of the United States or any Guarantor state thereof or the District of Columbia, subject to clause (j) below, a U.S. Borrower, and deliver any such Joinder Agreement under this clause (z) executed by Aleris or any U.S. Subsidiary of Aleris shall state whether or not such Person constitutes an Individual Aleris U.S. Borrower) and joinder agreements to the original stock certificatesapplicable Security Documents (in each case, if anysubstantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, evidencing in the case of a Foreign Subsidiary, execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all Applicable Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing, (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Closing Date to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under Applicable Law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or any Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to Amendment No. 2 to the extent any requirement of Applicable Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) 1160299.01-CHISR1160299.03H-CHISR02A - MSW prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Amendment No. 2 Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Designated Company. As of the Amendment No. 2 Effective Date, each Lender party to Amendment No. 2, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Amendment No. 2 Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence. As a condition to the effectiveness of the joinder of each of Aleris Rolled Products and Aleris Casthouse, to this Agreement as a German Borrower, and the joinder of Aleris Switzerland to this Agreement as a Swiss Borrower, in each case under this Section 5.11(b), the Designated Company shall have delivered an updated Borrowing Base Certificate to the Administrative Agent based on the Borrowing Base Certificates most recently delivered pursuant to this Agreement, which Borrowing Base Certificate shall also demonstrate the effect of the inclusion of the Eligible Accounts and Eligible Inventory owned by such Person on the Total Borrowing Base and such German Borrower’s and such Swiss Borrower's Borrowing Base.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent) (or immediately in connection with respect the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property located outside of the United States owned in fee by such Loan Party as is acquired by such Loan Party after the Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $15,000,000 (unless the subject property is already mortgaged to any real propertya third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, if as determined by the Administrative Agent reasonably determines that in its reasonable discretion), as additional security for the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit Secured Obligations. Subject to the Secured Parties terms of the security afforded therebyIntercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent will notify and the Borrower Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such determination andmanner and in such places as are required by law to establish, (i) if such real property is not then subject perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to a Lien be granted pursuant to the Security InstrumentsMortgages and all 1160299.01-CHISR1160299.03H-CHISR02A - MSW taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such real property shall not be required to become subject to a Lien pursuant actions and execute and/or deliver to the Security Instruments and, (ii) if Collateral Agent such real property is already subject to a Lien pursuant to the Security Instruments, documents as the Administrative Agent shallor the Collateral Agent shall reasonably require to confirm the validity, upon obtaining the consent perfection and priority of the Majority LendersLien of any existing Mortgage or new Mortgage against such after-acquired Real Property located outside of the United States (including a Title Policy (or title opinion reasonably satisfactory to the Collateral Agent), release a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such LienMortgage). For purposes of this Section 5.11(c) Real Property located outside of the United States owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property located outside of the United States and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties.
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity Mortgagor Specified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of 1060441.101066947.03-CHISR01A - MSW Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition property ceases to be Excluded Property, (y) within thirty (30) days after the end of the fiscal quarter in which such Person becomes a Restricted Subsidiary or during ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such periodproperty (other than property described in clause (x) above) ceased to be Excluded Property; provided that the Administrative Agent may agree to an extension of such time period or (z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) pledge and deliver to the Collateral Agent the certificates, if any, representing all of the Equity Interests of such Restricted Subsidiary or such Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as applicabledetermined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (in the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, and (B) to execute and deliver mortgages take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable Security Instruments filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable 1060441.101066947.03-CHISR01A - MSW Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Midstream PropertiesEquity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary is a party or the organizational documents or shareholders’ agreement of such non-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), Deeds and/or Rights (y) any Joint Venture Subsidiary, to the extent the terms of Way any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) and (2) clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Borrower. As of the Second Amendment Effective Date, each Lender party to the Second Amendment, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Second Amendment Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Subject to the terms of the Intercreditor Agreement, promptly grant to the Collateral Agent, within sixty (60) days of the acquisition thereof or, in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such property ceases to be Excluded Property (or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Real Property owned in fee by such Loan Party as is acquired by such Loan Party after the 1060441.101066947.03-CHISR01A - MSW Closing Date and that, together with any improvements thereon, individually has a fair market value the Dollar Equivalent of which is at least $10,000,000 (unless the subject property is already mortgaged to a third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Lien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), a Survey (if applicable in each case the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such Mortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Designated Company and its Subsidiaries as of the end of the most recently ended fiscal quarter or more than 7.5% of Consolidated EBITDA of the Designated Company and its Restricted Subsidiaries as of the end of the most recently ended fiscal quarter, then the Loan Parties shall, not later than 45 days after the date by which financial statements for such fiscal quarter are required to be delivered pursuant to this Agreement (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), cause one or more of such Restricted Subsidiaries to become Loan Parties (notwithstanding that such Restricted Subsidiaries are, individually, Excluded Collateral Subsidiaries) such that the foregoing condition ceases to be true. The Designated Company may designate a Subsidiary Guarantor that was not a Restricted Subsidiary of the Designated Company on the Closing Date as an Excluded Collateral Subsidiary subject to the terms of the definition thereof, in which event the Guarantee by such Restricted Subsidiary shall be released in accordance with Section 7.09 and the Collateral Agent shall release the Collateral pledged by such Person.
(e) Any Foreign Subsidiary that is a Loan Party that has in the United States at any time (i) a deposit account that is part of the Cash Pooling Arrangements or (ii) property (other 1060441.101066947.03-CHISR01A - MSW than Excluded Property) having an aggregate fair market value in excess of $5,000,000 for any such foreign Loan Party, shall execute a joinder agreement to the U.S. Security Agreement reasonably satisfactory to the Administrative Agent.
(bf) The Parent and the Borrower shall promptly cause each (i) Domestic Subsidiary to be a party Notwithstanding any other provision of this Section 5.11 or any provision in any other Loan Document to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests contrary, in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Subsidiary, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge all of the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity that are owned by the Borrower or any Guarantor (and deliver the original stock certificates, if any, evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entity, together with an appropriate undated stock power for each certificate duly executed in blank by the registered owner thereof) and (C) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything to the contrary contained herein, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, the Administrative Agent shall, upon obtaining the consent of the Majority Lenders, release such Lien.e
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) Subject to the terms of the Intercreditor Agreement and this Section 5.11, with respect to (i1) Within any property acquired after the Closing Date by any Loan Party that is intended to be subject to the Lien created by any of the Security Documents but is not so subject, including in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, and any Person becoming a Specified Aleris Subsidiary, and (2) any property that was Excluded Property but, as of the end of the most recently ended fiscal quarter or in connection with any step of the Permitted Reorganization, any Permitted Reorganization Action, any Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary, has ceased to be Excluded Property, promptly (and in any event (w) in the case of newly acquired property, within thirty (30) days after the acquisition thereof, (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or such longer period not to exceed ninety any U.S. Hold Separate Agreement, within thirty (9030) days as after the date such property ceases to be Excluded Property, (y) in the case of any other property that was Excluded Property, within thirty (30) days after the end of fiscal quarter in which such property ceases to be Excluded Property; provided that, in the case of clauses (w) through (y), the Administrative Agent may agree to an extension thereof, or (z) immediately in connection with the applicable step(s) of the Permitted Reorganization, the applicable Permitted Reorganization Action, the applicable Permitted Aleris Foreign Subsidiary Transfer, or any Person becoming a Specified Aleris Subsidiary) (i) execute and deliver to the Administrative Agent and the Collateral Agent such amendments or supplements to the relevant Security Documents or such other documents as the Administrative Agent or the Collateral Agent shall deem necessary or advisable to grant to the Collateral Agent, for its sole discretion) after (A) benefit and for the consummation by any Credit Party benefit of the other Secured Parties, a Material Acquisition (First Priority Lien on such property subject to no Liens other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31, beginning with the period beginning on the date hereof and ending on June 30, 2015Permitted Liens, and (ii) on take all actions necessary to cause such Lien to be duly perfected to the closing date extent required by such Security Document in accordance with all applicable Requirements of any Permitted Acquisition pursuant Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent; provided that the actions required by clauses (i) and (ii) above need not be taken if the costs of doing so are excessive in relation to which a Credit Party acquires Equity Interests the benefits afforded thereby, as determined by the Administrative Agent in a Drop Down Entity Mortgagor, the Borrower its reasonable discretion. The Designated Company shall cause the Credit Parties otherwise take such actions and any applicable Drop Down Entity Mortgagor to provide execute and/or deliver to the Administrative AgentAgent and the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, without duplication, copies perfection and priority of all recorded Deeds and/or Rights the Lien of Way with the Security Documents against such after-acquired properties. 180
(b) With respect to its Midstream Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that becomes a Restricted Subsidiary or a Specified Aleris Subsidiary after the Closing Date (other than (w) Aleris Belgium, to the extent that Aleris Belgium is not a Drop Down Entity Mortgagor Specified Aleris Subsidiary, (x) Aleris Italy, (y) an Excluded Collateral Subsidiary and (z) a Securitization Entity), any Restricted Subsidiary that was an Excluded Collateral Subsidiary but, as of the end of the most recently ended fiscal quarter, has ceased to be an Excluded Collateral Subsidiary or is required to become a Guarantor hereunder Loan Party by operation of the provisions of Section 5.11(d), the definition of Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer, or any property that ceases to be Excluded Property, promptly (and in which Equity Interests were acquiredany event (x) in the case of property that was Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within thirty (30) days after the date such Material Acquisition or during such periodproperty ceases to be Excluded Property, as applicable, and to execute and deliver mortgages or other applicable Security Instruments on such Midstream Properties, Deeds and/or Rights of Way in favor (y) within thirty (30) days after the end of the Administrative Agentfiscal quarter in which such Person becomes a Restricted Subsidiary (other than Aleris Luxembourg, in each case in form and substance satisfactory which is not required to comply with this Section 5.11(b) until December 31, 2020; provided that the Administrative Agent.
Agent may agree to an extension of such time period in its sole discretion) or ceases to be an Excluded Collateral Subsidiary or is required to become a Loan Party by operation of the provisions of Section 5.11(d), or after such property (bother than property described in clause (x) The Parent and above) ceased to be Excluded Property; provided that the Borrower shall promptly cause each Administrative Agent may agree to an extension of such time period or (z) immediately upon such Person becoming a Specified Aleris Subsidiary or in connection with the applicable step(s) of the Permitted Reorganization, the definition of Permitted Reorganization Actions, or the definition of Permitted Aleris Foreign Subsidiary Transfer) (i) Domestic Subsidiary to be a party pledge and deliver to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding Agent the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement)certificates, and (ii) Domestic Subsidiaryif any, other than the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent shall, or shall cause such Domestic Subsidiary to, promptly, but in any event no later than 15 days after the acquisition or the formation and organization of such Domestic Subsidiary (or other similar event including the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity to, (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (B) pledge representing all of the Equity Interests of such Domestic Restricted Subsidiary and/or or such Drop Down Entity Specified Aleris Subsidiary owned by a Loan Party, together with undated stock powers or other appropriate instruments of transfer executed and delivered in blank by a duly authorized officer of the holder(s) of such Equity Interests, and all intercompany notes owing from such Restricted Subsidiary or Specified Aleris Subsidiary to any Loan Party together with instruments of transfer executed and delivered in blank by a duly authorized officer of such Loan Party and (ii) cause any such Restricted Subsidiary (other than a Specified Aleris Subsidiary) that is a Wholly Owned Subsidiary or that is a German Borrower Holding Company or an Aleris German Non-Wholly Owned Subsidiary (other than (x) any Restricted Subsidiary prohibited from being a Guarantor under any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement), including any Requirement of Law relating to financial assistance, maintenance of capital or other corporate benefit restrictions and (y) any Restricted Subsidiaries where providing such guarantee would result in (1) materially adverse tax consequences, as determined by the Administrative Agent in its reasonable discretion (after consultation with its counsel) or (2) costs that are owned excessive in relation to the benefits afforded thereby, as determined by the Borrower Administrative Agent in its reasonable discretion) and any such Specified Aleris Subsidiary, in each case to the extent not prohibited by applicable Requirements of Law (in the case of the U.S. Hold Separate Assets, as such Requirements of Law are modified pursuant to a U.S. Hold Separate Agreement), (A) to execute a Joinder Agreement or any such comparable documentation to become a Subsidiary Guarantor and joinder agreements to the applicable Security Documents (in each case, substantially in the form annexed thereto or in such other form as may be reasonably satisfactory to the Administrative Agent) or, in the case of a Foreign Subsidiary execute such other Security Documents (or joinder agreements) to the extent possible under and compatible with the laws of such Foreign Subsidiary’s jurisdiction in form and substance reasonably satisfactory to the Administrative Agent, (B) to take all actions necessary or advisable in the opinion of the Administrative Agent or the Collateral Agent to cause the Liens created by the applicable Security Documents to be duly perfected to the extent required by such agreement in accordance with all applicable Requirements of Law, including the filing of financing statements (or other applicable filings) in such jurisdictions as may be reasonably requested by the Administrative Agent or the Collateral Agent, and (C) in the case of a Subsidiary that ceases to be an Excluded Collateral Subsidiary, to deliver to the original stock certificates, if any, evidencing Administrative Agent a supplement to Schedule 1.01(c) removing such Subsidiary 181 from such Schedule. Notwithstanding the foregoing (1) clause (i) of this paragraph (b) shall not apply to the Equity Interests of (w) any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) continues to prohibit the pledging of its Equity Interests to secure the Secured Obligations and any Company acquired or created after the Effective Date to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits the pledging of its Equity Interests to secure the Secured Obligations, (x) any non-Wholly Owned Subsidiary (other than each German Borrower Holding Company and each Aleris German Non-Wholly Owned Subsidiary that is a Restricted Subsidiary, but including Aleris German GP Holdco) to the extent that the pledge or perfection of a Lien on such Domestic Equity Interests would violate any anti-assignment or negative pledge provisions of any contract to which such non-Wholly Owned Subsidiary and/or is a party or the organizational documents or shareholders’ agreement of such Drop Down Entitynon-Wholly Owned Subsidiary (but only to the extent such anti-assignment or negative pledge clause is enforceable under applicable law), together (y) any Joint Venture Subsidiary, to the extent the terms of any contract to which such Joint Venture Subsidiary is a party or any applicable joint venture, stockholders’, partnership, limited liability company or similar agreement (other than any of the foregoing entered into with an appropriate undated stock power for each certificate duly executed any Company or Affiliate of any Company) prohibits or conditions the pledging of its Equity Interests to secure the Secured Obligations and (z) any Restricted Subsidiary (other than a Specified Aleris Subsidiary) to the extent such pledge would result in blank materially adverse tax consequences, as determined by the registered owner thereofAdministrative Agent in its reasonable discretion (after consultation with its counsel) and (C2) execute clause (ii) of this paragraph (b) shall not apply to any Company listed on Schedule 5.11(b) to the extent any applicable Requirement of Law (except as otherwise agreed by any Governmental Authority pursuant to a U.S. Hold Separate Agreement) prohibits it from becoming a Loan Party. Notwithstanding anything to the contrary in this Section 5.11(b), with respect to each Foreign Subsidiary that becomes a party to this Agreement after the Second Amendment Effective Date, the obligations of such Foreign Subsidiary under this Agreement, any Guarantee, any Foreign Guarantee, any Security Document, any Joinder Agreement, or any other Loan Document, may be limited (and deliver such agreements may be amended, restated, supplemented or otherwise modified to give effect to such limitations without the consent of any Person other additional closing documents, certificates and legal opinions as shall reasonably be requested by than the Administrative Agent, the Collateral Agent, and such Foreign Subsidiary) in accordance with the Agreed Guarantee and Security Principles on terms reasonably satisfactory to the Administrative Agent and the Borrower. As of the Second Amendment Effective Date, each Lender party to the Second Amendment, which Lenders constitute the Required Lenders, and each Lender that becomes a party to this Agreement after the Second Amendment Effective Date, expressly consents to the terms set forth in, and the rights of the Agents to consent to the terms of the amendments, restatements, supplements and modifications described in, the immediately preceding sentence.
(c) Notwithstanding anything Subject to the contrary contained hereinterms of the Intercreditor Agreement, with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit promptly grant to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination andCollateral Agent, (i) if in the case of property that is Excluded Property as a result of the U.S. Hold Separate Order or any U.S. Hold Separate Agreement, within sixty (60) days after the date such real property is not then subject ceases to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments andExcluded Property, (ii) if in the case of the automotive finishing plantreal property located in ▇▇▇▇▇▇▇, Kentucky owned by Novelis Corporation, no later than September 30, 2023; provided, however, that within sixty (60) days afterof receipt of the Amendment No. 6 Effective Date, (iii) in the case of the sheet ingot casting, shreddingcertificate of occupancy for each constructed facility located on such real property, such mortgage shall be amended to reflect the completion of the applicable facility, and the applicable Loan Party shall provide an updated ALTA-compliant “as built” Survey with respect to the land subject to such mortgage and any improvements located thereon, a date down endorsement to any Title Policy issued in connection with such mortgage (which may include increasing the insured amount provided for thereunder to reflect the value of the improved real property), and recycling center in ▇▇▇▇▇▇▇, Kentucky, if requested by Administrative Agent, a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of any such 182 mortgage amendment (the terms of this proviso, the “Supplemental Mortgage Deliverables”), (iii) that certain parcel of undeveloped land located in Baldwin County, Alabama owned by Novelis Corporation, no later than September 30, 2023; provided, however, that within sixty (60) days of receipt of the certificate of occupancy for such planteach constructed facility located on such real property, such mortgage shall be amended to reflect the completion of the applicable facility, and the applicable Loan Party shall provide the Supplemental Mortgage Deliverables for such real property, and (iv) otherwise, within sixty (60) days of the acquisition thereof (in each case, or such later date agreed by the Administrative Agent) (or immediately in connection with the applicable step(s) of the Permitted Reorganization, any Permitted Reorganization Action, or any Permitted Aleris Foreign Subsidiary Transfer), a security interest in and Mortgage on each Material Real Estate Asset (unless the subject property is already subject mortgaged to a Lien third party to the extent permitted by Section 6.02 hereof or the costs of doing so are excessive in relation to the benefits afforded thereby, as determined by the Administrative Agent in its reasonable discretion). Subject to the terms of the Intercreditor Agreement, such Mortgages shall be granted pursuant to documentation reasonably satisfactory in form and substance to the Administrative Agent and the Collateral Agent and shall constitute valid, perfected and enforceable First Priority Liens subject only to Permitted Liens. Subject to the terms of the Intercreditor Agreement, the Mortgages or instruments related thereto shall be duly recorded or filed in such manner and in such places as are required by law to establish, perfect, preserve and protect the First Priority Liens in favor of the Collateral Agent required to be granted pursuant to the Security InstrumentsMortgages and all taxes, fees and other charges payable in connection therewith shall be paid in full. Such Loan Party shall otherwise take such actions and execute and/or deliver to the Administrative Agent shalland the Collateral Agent such documents as the Administrative Agent or the Collateral Agent shall reasonably require to confirm the validity, upon obtaining the consent perfection and priority of the Majority LendersLien of any existing Mortgage or new Mortgage against such after-acquired Real Property (including a Title Policy (or title opinion reasonably satisfactory to the Administrative Agent and the Collateral Agent), release a Survey (if applicable in the respective jurisdiction), and a local counsel opinion (in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent) in respect of such LienMortgage). For purposes of this Section 5.11(c) Real Property owned by a Company that becomes a Loan Party following the Closing Date in accordance with the terms of this Agreement shall be deemed to have been acquired on the later of (x) the date of acquisition of such Real Property and (y) the date such Company becomes a Loan Party.
(d) If, at any time and from time to time after the Closing Date, Restricted Subsidiaries that are not Loan Parties because they are Excluded Collateral Subsidiaries comprise in the aggregate more than 7.5% of the Consolidated Total Assets of the Design
Appears in 1 contract
Sources: Credit Agreement (Novelis Inc.)
Additional Collateral; Additional Guarantors. (a) (iIn connection with each redetermination of the Borrowing Base, the Borrower shall review the Reserve Report and the list of current Mortgaged Properties to ascertain whether the Mortgaged Properties represent at least 80% of the total value of the Proved Hydrocarbon Interests evaluated in the most recently completed Reserve Report after giving effect to exploration and production activities, acquisitions, dispositions and production. In the event that the Mortgaged Properties do not represent at least 80% of such total value, then the Borrower shall, and shall cause its Restricted Subsidiaries to, grant, within 30 days of the delivery of the certificate required under Section 8.11(c) Within thirty (30) days (or such longer period not to exceed ninety (90) days as the Administrative Agent may agree in its sole discretion) after (A) the consummation by any Credit Party of a Material Acquisition (other than any acquisition of Equity Interests in a Drop Down Entity Mortgagor) and (B) each semi-annual period ending on June 30 or December 31), beginning with the period beginning on the date hereof and ending on June 30, 2015, and (ii) on the closing date of any Permitted Acquisition pursuant to which a Credit Party acquires Equity Interests in a Drop Down Entity Mortgagor, the Borrower shall cause the Credit Parties and any applicable Drop Down Entity Mortgagor to provide to the Administrative AgentAgent as security for the Secured Indebtedness a first-priority Lien interest (provided that Permitted Liens may exist) on additional Oil and Gas Properties evaluated in the most recently completed Reserve Report containing Proved Hydrocarbon Interests not already subject to a Lien of the Security Instruments such that after giving effect thereto, without duplication, copies of all recorded Deeds and/or Rights of Way with respect to its Midstream the Mortgaged Properties that have been received or otherwise acquired by any Credit Party or Drop Down Entity Mortgagor (including any Midstream Properties owned by any Person that is a Drop Down Entity Mortgagor or is required to become a Guarantor hereunder in which Equity Interests were acquired) as a result will represent at least 80% of such Material Acquisition or during total value. All such periodLiens will be created and perfected by and in accordance with the provisions of deeds of trust, as applicable, security agreements and to execute and deliver mortgages financing statements or other applicable Security Instruments on such Midstream PropertiesInstruments, Deeds and/or Rights of Way in favor of the Administrative Agent, in each case all in form and substance reasonably satisfactory to the Administrative AgentAgent and in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. Notwithstanding anything to the contrary contained in this Agreement, if any Restricted Subsidiary places a Lien on its Oil and Gas Properties to secure the Secured Indebtedness and such Restricted Subsidiary is not a Guarantor, then it shall become a Guarantor and comply with Section 8.13(c).
(b) The Parent and If the Borrower shall promptly cause each (i) Domestic or any Restricted Subsidiary to be becomes the owner of a party to the Guaranty and Collateral Agreement pursuant to which such Domestic Subsidiary will grant Liens and security interests in substantially all of its personal property (excluding the assets excluded from the “Collateral” under the Guaranty and Collateral Agreement), and (ii) Domestic Restricted Subsidiary, other than then the Borrower, to guarantee the Obligations pursuant to the Guaranty and Collateral Agreement. In connection with the foregoing, the Parent Borrower shall, or shall cause such Domestic Restricted Subsidiary to, promptly, but in any event no later than 15 30 days after the acquisition or the formation and organization date of such Domestic Subsidiary becoming an owner thereof (or other similar event including such longer period as the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary pursuant to the terms hereof) or of any Drop Down Entity toAdministrative Agent may agree in its discretion), (A) execute and deliver a supplement to the Guaranty and Collateral Agreement, executed by such Domestic Subsidiary, (Bi) pledge all (x) 100% of the Equity Interests of such new Restricted Subsidiary if such Subsidiary is a Domestic Subsidiary and/or or (y) 65% of the total combined voting power of all classes of Equity Interests and 100% of all non-voting Equity Interests of such Drop Down Entity that are owned by the Borrower or any Guarantor new Restricted Subsidiary, if such new Restricted Subsidiary is a Foreign Subsidiary (and deliver the including, without limitation, delivery of original stock certificates, if any, certificates evidencing the Equity Interests of such Domestic Subsidiary and/or such Drop Down Entitynew Restricted Subsidiary, together with an appropriate undated stock power powers for each certificate duly executed in blank by the registered owner thereof) and (Cii) execute and deliver such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent.
(c) Notwithstanding anything The Borrower shall cause the following Persons to guarantee the Secured Indebtedness pursuant to the contrary contained hereinGuaranty Agreement:
(i) each Material Restricted Subsidiary;
(ii) any Person required to guarantee the Secured Indebtedness in order for the Borrower to be in compliance with Section 9.05(b);
(iii) any Person that guarantees any Existing Debt or any Permitted Additional Debt;
(iv) any Restricted Subsidiary that places a Lien as required by the last sentence of Section 8.13(a) on its Oil and Gas Properties to secure the Secured Indebtedness; and
(v) one or more additional Restricted Subsidiaries to the extent necessary to cause (A) the total assets of the Restricted Subsidiaries that are not Guarantors to be less than 15% of the combined assets of the Borrower and its Restricted Subsidiaries and (B) the combined EBITDAX of such Restricted Subsidiaries to be less than 15% of the combined EBITDAX of the Borrower and its Restricted Subsidiaries.
(d) In connection with any guaranty required by Section 8.13(c), the Borrower shall, or shall cause such Subsidiary or other Person to promptly, but in any event no later than 30 days (or such longer period as the Administrative Agent may agree in its discretion) after the event requiring such guaranty, execute and deliver (i) a supplement to the Guaranty Agreement and (ii) such other additional closing documents, certificates and legal opinions as shall reasonably be requested by the Administrative Agent. If at any time any Person is not otherwise required to guarantee the Secured Indebtedness hereunder (whether pursuant to the other provisions of this Section 8.13 or otherwise) or under any other Loan Document, then upon receipt by the Administrative Agent of evidence satisfactory to it that such Person has been fully and finally released from its guarantee obligations in respect of the Existing Debt or, if applicable, any Permitted Additional Debt, as the case may be, such Person shall be released from its guarantee obligations with respect to any real property, if the Administrative Agent reasonably determines that the costs, financial and otherwise, of obtaining or maintaining a Lien, perfecting a Lien and/or complying with all Governmental Requirements with respect to such a Lien outweigh the benefit to the Secured Parties of the security afforded thereby, the Administrative Agent will notify the Borrower of such determination and, (i) if such real property is not then subject to a Lien pursuant to the Security Instruments, such real property shall not be required to become subject to a Lien pursuant to the Security Instruments and, (ii) if such real property is already subject to a Lien pursuant to the Security Instruments, Indebtedness and the Administrative Agent shall, upon obtaining at the consent sole cost and expense of the Majority LendersBorrower, release execute such Lienfurther documents and do all such further acts so as to reasonably evidence such release.
(e) The Borrower shall not permit any Canadian Subsidiary to guarantee any Existing Debt or any Permitted Additional Debt.
Appears in 1 contract