Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto). (b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 4 contracts
Sources: Specified Acquisition Loan Joinder (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject Except for the Liens granted to Permitted Lender pursuant to this Agreement and Liens entitled referred to priority under Applicable Law) in all Section 3.11, Borrower owns and will own each item which it pledges on the date hereof or may hereinafter pledge as Collateral, whether now owned free and clear of any and all Liens. No security agreement, financing statement or hereafter acquired, pursuant other public notice similar in effect with respect to the terms all or any part of the Security Agreement to which each Borrower Collateral is a party to the extent perfected by the filing or will be on file or of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but record in any event within ninety (90) days after request thereforpublic office, except such as have been or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney hereinafter be filed in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) Lender pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if requiredthis Agreement, and a certification of except in connection with the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest referred to in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)3.11.
(b) In This Agreement is effective to create, as collateral security for the event any Obligations, the Other RF Obligations and the Warehouse Obligations valid and enforceable Liens on the Collateral in favor of Lender.
(c) Upon filing of the financing statements delivered to Lender by Borrower disposes on the Closing Date with the Secretary of any assets or Equity Interests as permitted underState of the State of New Jersey and the Secretary of State of the State of Delaware (which financing statements are in proper form for filing in such jurisdictions) and the delivery to, and continuing possession by, Lender or its nominee of the Pledged Securities, the Liens created pursuant to this Agreement will constitute a first priority perfected security interest in compliance with, the Collateral in favor of Lender (except to the extent the Collateral may be deemed to represent funds on deposit in the Spread Account as referred to in Section 7.04(b) (including any amendment thereof or consent thereunder3.11), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder which Liens will be prior to all other Liens of all other Persons and no Default would result from such designation, and so long which Liens are enforceable as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver against all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicableother Persons.
Appears in 2 contracts
Sources: Credit and Security Agreement (Long Beach Holdings Corp), Credit and Security Agreement (Long Beach Holdings Corp)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates Borrower owns and will own each item which it pledges as Collateral, free and clear of titles for any and all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent Liens (including, without limitation, any tax liens), other than the delivery first priority Liens created in favor of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification Lender pursuant to this Agreement or in the second priority Liens in favor of the name Other Residual Financing Facility Lender under any other Loan Document. No security agreement, financing statement or other public notice similar in effect with respect to all or any part of the Collateral is or will be on file or of record in any public office, except such as have been or may hereinafter be filed pursuant to this Agreement evidencing Lender's first priority Liens therein, or as may have been or may hereafter be filed pursuant to the Other Residual Financing Facility in favor of the Other Residual Financing Facility Lender evidencing its second priority Liens therein, or except such as shall be terminated as to the Collateral no later than immediately prior to the pledge of such Collateral to the Lender under this Agreement.
(ii) This Agreement is effective to create, as collateral security for the Obligations hereunder, valid and address of each real estate recording office where a mortgage enforceable Liens on the real estate on which any Collateral consisting in favor of fixtures may be located would be recordedLender.
(iii) so as to provide the Administrative Agent, for the benefit Upon filing of the Secured Partiesfinancing statement delivered to Lender by Borrower on or prior to the Effective Date with the Secretary of State of the State of Delaware (which financing statement is in proper form for filing in such jurisdiction), the Liens created pursuant to this Agreement will constitute a perfected first-priority security interest in the Collateral in favor of Lender, which Liens will be prior to all other Liens of all other Persons and which Liens are enforceable as such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or as against all other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)Persons.
(biv) In the event any Borrower disposes owns and will own each item which it pledges as Other Residual Financing Facility Collateral, free and clear of any assets or Equity Interests as permitted underand all Liens (including, and in compliance withwithout limitation, Section 7.04(b) (including any amendment thereof or consent thereundertax liens), or other than the second priority Liens created in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (favor of Lender pursuant to this Agreement or the Parent, first priority Liens in favor of the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations Other Residual Financing Facility Lender under the Loan Documents and to release the Liens granted to the Administrative Agent Other Residual Financing Facility. No security agreement, financing statement or other public notice similar in effect with respect to all or any part of the Other Residual Financing Facility Collateral is or will be on file or of record in any public office, except such assetsas have been or may hereinafter be filed pursuant to this Agreement evidencing Lender's second priority Liens therein, Equity Interests or Borroweras may have been or hereafter be filed pursuant to the Other Residual Financing Facility in favor of the Other Residual Financing Lender evidencing its first priority Liens therein, or except such as shall be terminated as to the Collateral no later than immediately prior to the pledge of such Other Residual Financing Facility Collateral to the Lender under this Agreement.
(v) This Agreement is effective to create, as applicablecollateral security for the Obligations hereunder, valid and enforceable Liens on the Other Residual Financing Facility Collateral in favor of Lender.
(vi) Upon filing of the financing statement delivered to Lender by Borrower on or prior to the Effective Date with the Secretary of State of the State of Delaware (which financing statement is in proper form for filing in such jurisdiction), the Liens created pursuant to this Agreement will constitute a perfected security interest in the Other Residual Financing Facility Collateral in favor of Lender, which Liens will be prior to all other Liens of all other Persons (other than the first priority Liens of the Other Residual Financing Facility Lender under the Other Residual Financing Facility) and which Liens in favor of Lender are enforceable as such as against all other Persons.
Appears in 2 contracts
Sources: Master Residual Loan Agreement (Triad Financial Corp), Master Residual Loan Agreement (Triad Financial Corp)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree Borrower agrees to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Collateral Security. (a) The Obligations shall be secured To secure the performance by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority Borrower of its obligations hereunder, and under Applicable Law) in all Collateralthe Notes and Security Instruments, whether now owned or hereafter acquiredincurred, pursuant matured or unmatured, direct or contingent, joint or several, or joint and several, including extensions, modification and renewals thereof, and substitutions therefore, Borrower has heretofore granted and assigned to the terms Agent, for the ratable benefit of the Security Banks, and shall herewith and hereafter grant and assign to Agent, for the ratable benefit of the Banks, a first and prior security interest and lien on the Oil and Gas Properties, the stock of certain of the Subsidiaries, and the other collateral. Guarantor has heretofore executed and delivered its guaranty agreement guaranteeing the prompt payment and performance of Borrower's obligations hereunder and under the Notes. As security for the performance of its guaranty agreement, Guarantor has heretofore granted to Agent, for the ratable benefit of the Banks, and shall herewith and hereafter grant and assign to Agent, for the ratable benefit of Banks, a first and prior lien on its Oil and Gas Properties. Guarantor shall execute this Agreement to confirm its consent to (i) the execution of the Agreement by Borrower, and (ii) the amendments contained therein. All Oil and Gas Properties, oil and gas related equipment, inventory and receivables, stock, notes and other collateral in which each Borrower is a party or Guarantor has heretofore or hereafter grants to the extent perfected by Agent, for the filing of UCC financing statements; (b) a pledge of 100% ratable benefit of the capital stock or other Equity Interests Banks, a first and prior lien (to the satisfaction of the Banks) in accordance with this Section 6, as such properties and interests are from time to time constituted, are hereinafter collectively called the "Collateral." The granting and assigning of such Borrowers (other than the Parent) security interests and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a liens by Borrower shall be required pursuant to be so pledged Security Instruments in form and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company substance satisfactory to the Administrative Agent) pursuant . Borrower and Guarantor shall furnish to agreements reasonably the Agent the mortgage and title opinions and other documents satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection title and lien status of security its interests in such of the Motor Vehicles; Oil and Gas Properties covered by the Security Instruments as required in Section 12(n) and (iio) mortgages with respect hereof. Borrower and Guarantor will cause to Real Property be executed and delivered to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the ratable benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the ParentBanks, in the case future, additional Security Instruments if the Agent deems such are necessary to insure perfection or maintenance of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided their security interests and liens in the Administrative Agent with such certifications Collateral or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicableany part thereof.
Appears in 2 contracts
Sources: Loan Agreement (Clayton Williams Energy Inc /De), Loan Agreement (Clayton Williams Energy Inc /De)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority indebtedness, liabilities and obligations of Borrower under Applicable Law) in all Collateralthis Section 2A, however created or incurred, whether now owned existing or hereafter acquiredarising, pursuant due or to become due, absolute or contingent, direct or indirect, secured or unsecured, are among the obligations secured by the security interests, liens and encumbrances created by the Collateral Security Documents delivered to Agent by Borrower, and Agent and the Lenders are entitled to the terms benefit of the Security Agreement collateral security granted thereunder with respect to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; such indebtedness.
(b) a pledge of 100% Notwithstanding the payment in full of the capital stock or other Equity Interests of such Borrowers (other than Loans, the Parent) and termination of the Non-Revolving Credit Commitment or the occurrence of the Termination Date, unless and until Borrower Subsidiaries shall have provided the collateral in the form of cash or U.S. Treasury bills as required by subparagraph (other c) below, the Collateral shall continue to secure the indebtedness, liabilities and obligations of Borrower under this Section 2A until all Letters of Credit shall have expired and all indebtedness, liabilities and obligations under this Section 2A shall have been paid in full.
(c) On the termination of the Revolving Credit Commitment or the occurrence of an Event of Default, Required Lenders may require (and in the case of an Event of Default occurring under Paragraph 7.1(i) it shall be required automatically) that Borrower deliver to Agent, cash or U.S. Treasury Bills with maturities of not more than 90 days from the Foreign Subsidiariesdate of delivery (discounted in accordance with customary banking practice to present value to determine amount) in an amount equal at all times to one hundred ten percent (110%) of the Administrative outstanding undrawn amount of all Letters of Credit, such cash or U.S. Treasury Bills and all interest earned thereon to constitute cash collateral for all such Letters of Credit. At such time as such collateral is required to be and has not been deposited, Agent on behalf of Lenders shall be entitled to liquidate such of the Secured Parties pursuant other collateral for the Loans (if any) as is necessary or appropriate in its sole judgment so as to the Pledge Agreement; and create such cash collateral.
(d) Any cash collateral deposited under subparagraph (c) a pledge above, and all interest earned thereon, shall be held by Agent and invested and reinvested at the expense and the written direction of the capital stock or other Equity Interests Borrower, in U.S. Treasury Bills with maturities of each Foreign Subsidiary (provided that not no more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which from the Administrative Agent may agree, (i) certificates date of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)investment.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (Merkert American Corp), Credit Agreement (Merkert American Corp)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected (except in the case of Real Property and motor vehicles, subject to the following proviso) first-priority security interest (subject only to Permitted Liens entitled to priority under Applicable LawLiens) in all Collateralassets of each Borrower (other than the Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock Capital Stock (or other Equity Interests in the case of a foreign Subsidiary, 65% of the Capital Stock) of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties Lenders and the Administrative Agent pursuant to the Pledge AgreementSecurity Documents; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power Capital Stock of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged)each foreign Subsidiary; provided that the Borrowers hereby agree, upon the request of notice from the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefordays, or such other later time, if any, titles to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles motor vehicles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s engineer's reports, surveys, environmental site assessments and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first-priority security interest in such assets. The Borrowers hereby acknowledge that (i) any and all Uniform Commercial Code financing statements (together with all rights thereunder) filed in connection with the Existing Credit Agreement naming Fleet National Bank, provided that as secured party, and such Borrower, as debtor, have been, or simultaneously herewith are being, assigned to the Administrative Agent and shall be effective to perfect the Administrative Agent's security interest granted by such Borrower pursuant to the Loan Documents to the extent that any lease such security interest may be perfected by the filing of Uniform Commercial Code financing statements and (or operating/management agreement with respect toii) Real Property prohibits assignment such prior filings represent pre-filings of such lease (or operating/management agreement) without Uniform Commercial Code financing statements for purposes of so perfecting the consent security interest granted by the Borrowers under the Loan Documents. Until all of the lessor or another party thereunderObligations have been finally paid and satisfied in full, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 12(b) shall continue to apply, and such filings shall continue to be effective and not subject to any right of termination in respect of the security interests granted herein, whether any obligations under the Existing Credit Agreement are to be discharged with respect thereto).
(b) the proceeds of any of the Loans or are to continue independently or otherwise. In the event any Borrower disposes the Borrowers dispose of any assets or Equity Interests as permitted under, in accordance with 8.4.2 (and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder4.4.1 where applicable), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ ' sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Waste Connections Inc/De), Revolving Credit and Term Loan Agreement (Waste Connections Inc/De)
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by (a) the following Collateral, and the Borrower hereby grants, conveys, transfers and assigns to the Lender a perfected first-security interest in and lien upon all of the property described below:
A. A third assignment of, security interest in and lien upon all of the Borrower's interests in and to all patents for products, goods and items produced or manufactured by the Borrower, and all processes employed in the production or manufacture thereof, to the extent the granting of such security interests shall not constitute a violation of law or a default under any existing agreement between the Borrower and any Person with regard to any such patents;
B. A continuing security interest in and lien upon all of the Borrower's accounts, inventory, and general intangibles, and a third priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in and lien upon all Collateralof the Borrower's furniture, machinery and equipment, whether now owned or hereafter acquired, pursuant and wherever located, together with all proceeds thereof. Lender's security interest in and lien on the Collateral shall be junior and subordinate to the terms security interest and lien of the Security Agreement DAMAD Holding AG and Bluwat AG to which each such Collateral. Borrower is a party agrees and undertakes to execute and deliver to the extent perfected by the filing Lender such deeds of UCC trust, security agreements, pledge agreements, assignments, financing statements; (b) a pledge of 100% of the capital stock or , subordinations, certificates, waivers, estoppel agreements, and other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) documentation, in form acceptable to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agreeLender, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, Lender in connection with the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification Collateral. Borrower further agrees that all of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit shall secure all of the Secured PartiesObligations of the Borrower to the Lender. It is specifically agreed and acknowledged by the parties hereto that the personal and real property owned by Schoeller Frisby Technologies GmbH, a perfected first-priority joint venture between Borrower and Schoe▇▇▇▇ ▇extil AG, shall not be deemed to be Collateral, as herein defined. Lender agrees that it will release its security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, Borrower's accounts receivable upon the receipt establishment by Borrower of a program of factoring such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)accounts receivable.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 2 contracts
Sources: Loan Agreement (Frisby Technologies Inc), Loan Agreement (Frisby Technologies Inc)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-(except in the case of Real Property and motor vehicles, subject to the following proviso) first- priority security interest (subject only to Permitted Liens entitled to priority under Applicable LawLiens) in all Collateralassets of each Borrower (other than the Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock Capital Stock (or other Equity Interests in the case of a foreign Subsidiary, 65% of the Capital Stock) of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties Lenders and the Administrative Agent pursuant to the Pledge AgreementSecurity Documents; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power Capital Stock of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged)each foreign Subsidiary; provided that the Borrowers hereby agree, upon the request of notice from the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefordays, or such other later time, if any, titles to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles motor vehicles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineerengineer’s reports, surveys, environmental site assessments and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In The Borrowers hereby acknowledge that (i) any and all Uniform Commercial Code financing statements (together with all rights thereunder) filed in connection with the event any Borrower disposes of any assets or Equity Interests Existing Credit Agreement naming Fleet National Bank, as permitted undersecured party, and in compliance withsuch Borrower, Section 7.04(b) (including any amendment thereof or consent thereunder)as debtor, have been, or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designationsimultaneously herewith are being, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted assigned to the Administrative Agent with respect and shall be effective to perfect the Administrative Agent’s security interest granted by such assets, Equity Interests or Borrower, as applicable.Borrower pursuant to the Loan Documents to the extent that such security interest may be perfected by the filing of Uniform Commercial Code financing statements and
Appears in 1 contract
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Company shall cause to be secured by (a) granted to the Administrative Agent, for the ratable benefit of the Lenders, a perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter existing or acquired, pursuant to the terms : (i) all of the Security shares of capital stock or other Equity Interests now or hereafter directly owned by the Company of or in its Subsidiaries and all proceeds thereof, all as more specifically described in the Company Pledge Agreement; (ii) all of the Intercompany Demand Notes, all of the Intercompany Acquisition Notes and the assets of the Company described in the Mexican Assignment Agreement and each Collateral Assignment to which the Company is a party ; (iii) all of the shares of capital stock or other Equity Interests now or hereafter directly or indirectly owned by any Subsidiary of or in its Subsidiaries and all proceeds thereof, all as more specifically described in the Subsidiary Pledge Agreements and the assets described in each Collateral Assignment to which each Borrower Subsidiary of the Company is a party to party; and (iv) the extent perfected shares of capital stock of the Company owned by the filing of UCC financing statements; Parent and all the proceeds thereof, all as more specifically described in the Parent Pledge Agreement.
(b) (1) Concurrently with the consummation of any Permitted Acquisition or (2) if earlier, within four Business Days of the formation of any new Subsidiary of the Company which is permitted hereunder, the Company shall
(i) in the case of a pledge Permitted Acquisition of 100% stock or a Permitted Acquisition of other Equity Interests by the Company or any of its Subsidiaries or the formation of a new Subsidiary of the Company: (A) deliver or cause to be delivered to the Administrative Agent all of the certificates representing the capital stock or other Equity Interests (or other instruments or securities evidencing ownership) of such Borrowers (other than new Subsidiary which is being acquired or formed, beneficially owned by the Parent) and Company or such Subsidiary, as additional collateral for the Obligations, to be held by the Administrative Agent in accordance with the terms of the Non-Borrower Subsidiaries (Company Pledge Agreement, Subsidiary Pledge Agreement or such other than the Foreign Subsidiaries) document in form and substance satisfactory to the Administrative Agent on behalf executed from time to time to effect the pledge and assignment of such Equity Interests, as the Secured Parties pursuant to the Pledge Agreementcase may be; and (cB) a pledge cause such new Subsidiary which is being acquired or formed to deliver to the Administrative Agent (1) duly executed counterpart signature pages to the Subsidiary Guaranty, in the form attached thereto as Annex I, together with the authorization to the Administrative Agent and the Lenders to attach such signature page to the Subsidiary Guaranty, the effect of which shall be that as of the date set forth on such signature pages such new Subsidiary shall become a party to such agreement and be bound by the terms thereof, (2) if such Subsidiary owns any capital stock or other Equity Interests of each Foreign any other Subsidiary of the Company, a Subsidiary Pledge Agreement or such other document in form and substance satisfactory to the Administrative Agent executed from time to time to effect the pledge and assignment of such Equity Interests, and (provided that not 3) an Intercompany Demand Note, duly endorsed, pledged and delivered to the Administrative Agent under the Company Pledge Agreement;
(ii) deliver or cause to be delivered such Uniform Commercial Code financing statements as shall be requested to perfect the security interest of the Administrative Agent and the Lenders in the assets being acquired to the extent such assets constitute Collateral; and
(iii) in any case, provide such other related documentation, including, without limitation, one or more opinions of counsel reasonably satisfactory to the Administrative Agent, articles of incorporation, by-laws and resolutions, which in the reasonable opinion of the Administrative Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary. Notwithstanding the foregoing, nothing contained in this Section 2.17 shall require (A) the Company or any Subsidiary to pledge more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign foreign Subsidiary of a Borrower shall be or (B) any foreign Subsidiary to take any action otherwise required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later timeby this Section 2.17, if any, to which in either case the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers Company shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor have determined that such pledge or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)action will have an adverse tax consequence.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) On the Issue Date, the Company shall (i) enter into the Pledge Agreement and thereafter comply with the terms and provisions of such agreement and (ii) pledge the Pledged Securities to the Pledged Securities Intermediary for the benefit of the Trustee and the ratable benefit of the Holders in such amount as will be sufficient upon receipt of scheduled interest and/or principal payments of such Pledged Securities to provide for payment in full of the first six scheduled interest payments due on the Securities, but excluding the Liquidated Damages, if any. The Obligations Pledged Securities shall be secured pledged by (a) a perfected first-priority security interest (the Company to the Pledged Securities Intermediary for the benefit of the Trustee and the ratable benefit of the Holders and shall be held by the Pledged Securities Intermediary in the Pledge Account pending disposition pursuant to the Pledge Agreement. The Pledged Securities shall also secure the payment of the Principal Amount and Liquidated Damages, if any, due on the Securities subject to Permitted Liens entitled to priority under Applicable Lawthe terms and conditions set forth in Section 13 of the Pledge Agreement.
(b) in all CollateralEach Holder, whether now owned or hereafter acquiredby its acceptance of a Security, pursuant consents and agrees to the terms of the Security Pledge Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery provisions providing for foreclosure and release of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if requiredthe Pledged Securities) as such agreement may be in effect or may be amended from time to time in accordance with their terms, and a certification authorizes and directs the Pledged Securities Intermediary and the Trustee to enter into the Pledge Agreement and to perform their respective obligations and exercise their respective rights under such agreement in accordance therewith. The Company will do or cause to be done all such acts and things as may be necessary or reasonably requested by the Pledged Securities Intermediary or the Trustee, or as may be required by the provisions of the name Pledge Agreement, to assure and address confirm to the Pledged Securities Intermediary and the Trustee the security interest in the Pledged Securities contemplated hereby, by the Pledge Agreement or any part of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) such agreement, as from time to time constituted, so as to provide render the Administrative Agentsame available for the security and benefit of this Indenture and of the Securities secured hereby, according to the intent and purposes herein and therein expressed. The Company shall take, or cause to be taken, upon request of the Pledged Securities Intermediary or the Trustee, any and all actions reasonably required to create and maintain, as security for the obligations of the Company under this Indenture and the Securities, a valid, enforceable and perfected first priority Lien in and on all the Pledged Securities, in favor of the Pledged Securities Intermediary for the benefit of the Secured PartiesTrustee and the ratable benefit of the Holders, a perfected first-priority superior to and prior to the rights of third Persons and subject to no other Liens.
(c) The release of any portion of the Pledged Securities pursuant to the Pledge Agreement will not be deemed to impair the security interest under this Indenture in such assets, provided that contravention of the provisions hereof if and to the extent the Pledged Securities are released pursuant to this Indenture and the Pledge Agreement. To the extent applicable, the Company shall cause TIA Section 314(d) relating to the release of property or securities from the Lien and security interest of the Pledge Agreement and relating to the substitution therefore of any property or securities to be subjected to the Lien and security interest of the Pledge Agreement to be complied with. Any certificate or opinion required by TIA Section 314(d) may be made by an Officer of the Company, except in cases where TIA Section 314(d) requires that any lease such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser or other expert selected by the Company.
(d) The Company shall cause TIA Section 314(b), relating to opinions of counsel regarding the Lien under the Pledge Agreement, to be complied with. The Pledged Securities Intermediary and the Trustee may accept, to the extent permitted by Sections 4.4 and 7.6 as conclusive evidence of compliance with the foregoing provisions, the appropriate statements contained in such instruments.
(or operating/management agreement with respect toe) Real Property prohibits assignment of such lease (or operating/management agreement) The Pledged Securities Intermediary and the Trustee may, in their sole discretion and without the consent of the lessor Holders, on behalf of the Holders, take all reasonable actions in accordance with the Pledge Agreement, necessary or another party thereunder, appropriate in order to (i) enforce any of the Borrowers shall not be required to grant a mortgage on terms of the leasehold interest Pledge Agreement and (ii) collect and receive any and all amounts payable in respect of the obligations of the Company under such lease, but in agreement. The Pledged Securities Intermediary and the Trustee shall have power to institute and to maintain such event, suits and proceedings as the Borrowers agree they may reasonably deem expedient to diligently preserve or protect their interests and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) interests of the applicable lessor Holders in the Pledged Securities (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other party to such leasehold mortgage (andgovernmental enactment, upon rule or order that may be unconstitutional or otherwise invalid if the receipt of such consentenforcement of, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof such enactment, rule or consent thereunder), order would impair the security interest hereunder or in be prejudicial to the event that interests of the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably requestHolders, the Administrative Agent will, at Pledged Securities Intermediary or of the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicableTrustee).
Appears in 1 contract
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Borrower shall cause to be secured by (a) granted to the Agent, for the ratable benefit of the Lenders, a first priority perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter acquired, existing or acquired subject only to the Liens permitted to be incurred pursuant to Section 7.3 hereof: (i) all of the ----------- shares of capital stock (or other equity interests of each Subsidiary if such Subsidiary is not a corporation) of each Subsidiary of the Borrower now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Borrower Pledge Agreement and the Subsidiary Pledge Agreements; (ii) certain of the assets of the Borrower and all proceeds thereof, all as more specifically described in the Borrower Security Agreement and the Mortgages; and (iii) certain of the assets of each Subsidiary now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Subsidiary Security Agreement and the Mortgages. To the extent the Agent for the benefit of the Lenders does not have a first priority perfected security interest in any assets of the Borrower or any other Loan Party required to be pledged as described above which is of the type described in the Borrower Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement or the Subsidiary Security Agreement or which consists of real property of the type described in subsection (c) below, the Borrower will grant, and cause each other Loan Party to grant, to the Agent for itself and the benefit of the Lenders a first priority perfected security interest in such assets subject only to the Liens permitted pursuant to Section 7.3 hereof. In connection with any sales of assets permitted hereunder, ----------- the Agent will release and terminate the liens and security interests granted under the Security Documents with respect to such assets and no further consent of the Lenders will be required with respect to any such release.
(b) Concurrently with the consummation of any Permitted Acquisition or any other acquisition of any asset (whether by purchase, merger, contribution, license or otherwise) which is of the type described in the Borrower Security Agreement, the Subsidiary Security Agreement, the Borrower Pledge Agreement or the Subsidiary Pledge Agreement by the Borrower or any Subsidiary of the Borrower (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any ------------ Security Document) (an "Acquiring Subsidiary") or the formation of any new Subsidiary (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) of the Borrower or upon an Immaterial ------------ Subsidiary ceasing to qualify or be designated as an Immaterial Subsidiary (conversion from the status of an Immaterial Subsidiary to a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as a "Conversion"), the Borrower shall:
(i) in the case of a Permitted Acquisition of stock or other equity interest or any other acquisition of stock or other equity interest (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary of the Borrower or the formation of such a new Subsidiary or a Conversion: (A) deliver or cause to be delivered to the Agent all of the certificates representing the capital stock (or other equity interest if such equity interests are represented by a certificate or certificates) of such new Subsidiary which is being acquired or formed or converted (or Investment if such Investment is not an Immaterial Investment), beneficially owned by the Borrower or such Acquiring Subsidiary, as additional collateral for the Obligations, to be held by the Agent in accordance with the terms of the Borrower Pledge Agreement or a Subsidiary Pledge Agreement, as the case may be; and (B) cause such Acquiring Subsidiary (which is not already a party thereto) or new Subsidiary which is being acquired or formed or converted to deliver to the Agent (1) duly executed counterpart signature pages to each of the Guaranty, and the Subsidiary Security Agreement Agreement, in the forms attached respectively thereto as Annex I, together with the authorization to the Agent and the Lenders to attach such signature pages to the Guaranty and the Subsidiary Security Agreement, respectively, the effect of which each Borrower is shall be that as of the date set forth on such signature pages such Acquiring Subsidiary or such new or converted Subsidiary, as the case may be, shall become a party to the extent perfected each such agreement and be bound by the filing of UCC financing statements; terms thereof and any revisions to the schedules to the Subsidiary Security Agreement necessary in connection therewith, (b2) a pledge of 100% of the if such new or converted Subsidiary owns any capital stock or other Equity Interests of equity interest or if such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) Acquiring Subsidiary is not already a party to the Administrative Agent on behalf of the Secured Parties pursuant to the a Subsidiary Pledge Agreement; and (c) , a pledge of Subsidiary Pledge Agreement duly executed by such new or converted Subsidiary or such Acquiring Subsidiary, as the capital stock case may be, or if such new or converted Subsidiary owns any copyrights, trademarks, patents or other Equity Interests of each Foreign Subsidiary intellectual property, such additional Security Documents as requested by the Agent, (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any 3) such first-tier Foreign Subsidiary of a Borrower Uniform Commercial Code financing statements as shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that perfect the Borrowers hereby agree, upon the request security interest of the Administrative Agent and the Required LendersLenders in the Collateral being pledged by such new Subsidiary pursuant to the Subsidiary Security Agreement, to deliver, as promptly as practicable, but in any event within ninety and (904) ten (10) days after request thereforprior written notice of any such Permitted Acquisition, other acquisition, formation or Conversion.
(ii) in the case of a Permitted Acquisition of assets or any other acquisition of assets (including equity interests of a Person other than a corporation) (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement or the formation of such a new Subsidiary or a Conversion into a Person which in either case is not a corporation, deliver or cause to be delivered by the Borrower or such other later time, if any, to which the Administrative Agent may agreeAcquiring Subsidiary acquiring such assets or forming such new Subsidiary, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with such Uniform Commercial Code financing statements as shall be required to perfect the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor security interest of the Parent to dispose Agent and the Lenders in the assets being so acquired, (B) if such assets include copyrights, trademarks, patents or other intellectual property, such additional Security Documents as requested by the Agent, (C) any additional instruments or documents evidencing the security interest of titled equipment) and, if the Agent reasonably required by the Administrative AgentAgent and (D) ten (10) days prior written notice of any such Permitted Acquisition, the Borrowers shall retain Corporation Service Company other acquisition, formation or Conversion; and
(or other similar company satisfactory to the Administrative Agentiii) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company in any case (or A) provide such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (documentation, including, without limitation, the delivery one or more opinions of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance counsel reasonably satisfactory to the Administrative Agent) , articles of incorporation, by-laws and resolutions (or equivalent organizational and authorization documents), which in the reasonable opinion of the applicable lessor Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary or other party acquisition (whether by purchase, merger, contribution or otherwise) or Conversion, (B) cause any newly formed or acquired Immaterial Subsidiary which is or is to such leasehold mortgage become a Subordinated Guarantor, to execute and deliver a counterpart to the Guaranty, and (andC) if, upon as a result of the receipt consummation of such consentany transaction or transactions, there is a significant change in the Borrowers shall information provided by the Borrower on Schedule 5.18, promptly grant such leasehold mortgage ------------- provide the Agent with a new schedule which reflects the then current corporate structure of the Borrower and comply with its Subsidiaries certified by an Authorized Officer of the other provisions of this Section 10.15 with respect thereto)Borrower.
(bc) In Concurrently with the event any Borrower disposes acquisition of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) interest (including a leasehold interest) in any amendment thereof real property by the Borrower or consent thereunder), or any Subsidiary of the Borrower in any state that does not at the event that the Parent designates any Borrower as an Excluded Subsidiary or time of acquisition assess a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably requestmortgage recording tax, the Administrative Agent will, at Borrower shall deliver or cause to be delivered to the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent Mortgages with respect to such assetsreal property interest, Equity Interests or Borrowertogether with title insurance policies, surveys, appraisals, opinions of counsels and such other documentation as applicablethe Agent may reasonably request.
Appears in 1 contract
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Borrower shall cause to be secured by (a) granted to the Agent, for the ratable benefit of the Lenders, a first priority perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter acquired, existing or acquired subject only to the Liens permitted to be incurred pursuant to the terms Section 7.3 hereof: (i) all of the Security Agreement to which shares of capital stock of each Subsidiary of the Borrower is a party to the extent perfected now or hereafter directly or indirectly owned by the filing of UCC financing statementsBorrower and all proceeds thereof, all as more specifically described in the Borrower Pledge Agreement and the Subsidiary Pledge Agreements; (bii) a pledge of 100% certain of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and assets of the Non-Borrower Subsidiaries (other than and all proceeds thereof, all as more specifically described in the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Borrower Security Agreement; and (ciii) a pledge certain of the capital stock or other Equity Interests assets of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock now or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, hereafter directly or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title indirectly owned by a the Borrower (collectivelyand all proceeds thereof, “Motor Vehicles”) with the Administrative Agent listed all as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests more specifically described in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by Subsidiary Security Agreement. To the Administrative extent the Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders does not have a first priority perfected security interest in any assets of the Borrower or any other Loan Party required to be pledged as described above which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement, the Borrower will grant, and cause each other Loan Party to grant, to the Agent for itself and the benefit of the Lenders a first priority perfected first-priority security interest in such assets, provided that assets subject only to the extent that Liens permitted pursuant to Section 7.3 hereof. In connection with any lease sales of (or operating/management agreement assets permitted under the Credit Agreement, the Agent will release and terminate the liens and security interests granted under the Security Documents with respect to) Real Property prohibits assignment of to such lease (or operating/management agreement) without the assets and no further consent of the lessor or another party thereunder, the Borrowers shall not Lenders will be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)to any such release.
(b) In Concurrently with the event any Borrower disposes consummation of any assets Permitted Acquisition or Equity Interests any other acquisition of any asset which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement by the Borrower or any Subsidiary of the Borrower (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary) or the formation of any new Subsidiary (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary) of the Borrower or upon an Immaterial Subsidiary ceasing to qualify or be designated as permitted under, and in compliance with, Section 7.04(b) an Immaterial Subsidiary (including any amendment thereof or consent thereunderconversion from the status of an Immaterial Subsidiary to a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as a "Conversion"), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower shall
(or the Parent, i) in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications Permitted Acquisition of stock or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty any other acquisition of stock by the Administrative Agent, execute and Borrower or any such Subsidiary of the Borrower or the formation of such a new Subsidiary or a Conversion: (A) deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order or cause to release such Person from its Obligations under the Loan Documents and to release the Liens granted be delivered to the Administrative Agent with respect to all of the certificates representing the capital stock (or other instruments or securities evidencing ownership) of such assetsnew Subsidiary which is being acquired or formed or converted, Equity Interests or Borrower, as applicable.beneficially
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-first priority security interest (subject only to Permitted Liens entitled to priority under Applicable Lawapplicable law) in all Collateralof the assets of the Borrower and its Subsidiaries, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement Documents to which each the Borrower or any of its Subsidiaries is a party to party. Without limiting the extent perfected generality of the foregoing, the Obligations shall be secured by the filing of UCC financing statements; following:
(ba) a pledge of 100% perfected first priority lien and security interest in substantially all assets of the capital stock or other Equity Interests of such Borrowers (other than the Parent) Borrower and of the Non-Borrower its Subsidiaries (other than the Foreign SubsidiariesTB Coastwise) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge terms of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided Security Agreements provided, that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant secure the Obligations with a second lien on tangible assets subject to first priority Permitted Liens;
(b) a perfected first priority security interest in and assignment of all the Borrower's right, title, and interest in and to any insurance and/or insurance policies with respect to each of the Eligible Vessels, such security interest to be granted pursuant to the Assignment of Insurance;
(c) a perfected first priority security interest in and assignment of all the Borrower's right, title and interest in and to all contracts, permits and licenses relating to each Eligible Vessel, such security interest to be granted pursuant to the Assignment of Contracts;
(d) a perfected first priority security interest in and assignment to all of the Borrower's right, title and interest in and to the Charter, such security interest to be granted pursuant to the Charter Assignment; and
(e) a perfected first preferred mortgage on lien and security interest in each Eligible Vessel pursuant to the leasehold interest under such lease, but in such eventterms of the First Preferred Vessel Mortgages. As further security for the Obligations, the Borrowers agree Borrower hereby agrees, that in the event the Borrower acquires or establishes any new Subsidiaries, the Borrower shall within thirty (30) days after such date cause such Subsidiary to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be enter into a guaranty, in form and substance reasonably satisfactory to the Administrative Agent) , in favor of the applicable lessor or other party Banks pursuant to which such leasehold mortgage Subsidiary shall guaranty the payment and performance of the Obligations and to cause the obligations of each Subsidiary under such Guaranty to be secured by a perfected first priority security interest (and, upon subject only to Permitted Liens) on all of the receipt assets of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted pursuant to the Administrative Agent with respect terms of security documents satisfactory to such assets, Equity Interests or Borrower, as applicablethe Agent.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Trailer Bridge Inc)
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by (a) the following Collateral, and the Borrower hereby grants, conveys, transfers and assigns to the Lender a perfected first-security interest in and lien upon all of the property described below:
A. A first and prior assignment of, security interest in and lien upon all of the Borrower's interests in and to all patents for products, goods and items produced or manufactured by the Borrower, and all processes employed in the production or manufacture thereof, to the extent the granting of such security interests shall not constitute a violation of law or a default under any existing agreement between the Borrower and any Person with regard to any such patents;
B. A continuing first priority security interest (subject to Permitted Liens entitled to in and lien upon all of the Borrower's accounts, inventory, and general intangibles, and a first priority under Applicable Law) security interest in and lien upon all Collateralof the Borrower's furniture, machinery and equipment, whether now owned or hereafter acquired, pursuant and wherever located, together with all proceeds thereof. Borrower agrees and undertakes to execute and deliver to the terms Lender such deeds of the Security Agreement to which each Borrower is a party trust, security agreements, pledge agreements, assignments, financing statements, subordinations, certificates, waivers, estoppel agreements, and other documentation, in form acceptable to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agreeLender, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, Lender in connection with the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification Collateral. Borrower further agrees that all of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit shall secure all of the Secured PartiesObligations of the Borrower to the Lender. It is specifically agreed and acknowledged by the parties hereto that the personal and real property owned by Schoeller ▇▇▇▇▇▇ Technologies GmbH, a perfected first-priority joint venture between Borrower and Schoeller Textil AG, shall not be deemed to be Collateral, as herein defined. Lender agrees that it will release its security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, Borrower's accounts receivable upon the receipt establishment by Borrower of a program of factoring such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)accounts receivable.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by (a) the following Collateral, and the Borrower hereby grants, conveys, transfers and assigns to the Lender a perfected first-security interest in and lien upon all of the property described below:
A. A first and prior assignment of, security interest in and lien upon all of the Borrower's interests in and to all patents for products, goods and items produced or manufactured by the Borrower, and all processes employed in the production or manufacture thereof, to the extent the granting of such security interests shall not constitute a violation of law or a default under any existing agreement between the Borrower and any Person with regard to any such patents;
B. A continuing first priority security interest (subject to Permitted Liens entitled to in and lien upon all of the Borrower's accounts, inventory, and general intangibles, and a first priority under Applicable Law) security interest in and lien upon all Collateralof the Borrower's furniture, machinery and equipment, whether now owned or hereafter acquired, pursuant and wherever located, together with all proceeds thereof. Borrower agrees and undertakes to execute and deliver to the terms Lender such deeds of the Security Agreement to which each Borrower is a party trust, security agreements, pledge agreements, assignments, financing statements, subordinations, certificates, waivers, estoppel agreements, and other documentation, in form acceptable to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agreeLender, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, Lender in connection with the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification Collateral. Borrower further agrees that all of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit shall secure all of the Secured PartiesObligations of the Borrower to the Lender. It is specifically agreed and acknowledged by the parties hereto that the personal and real property owned by Schoeller Fri▇▇▇ ▇▇chnologies GMBH, a perfected first-priority security interest in such assetsjoint venture between Borrower and Schoeller Textil AG, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required deemed to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if anyCollateral, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicableherein defined.
Appears in 1 contract
Collateral Security. In order to secure the payment of the Loans ------------------- when due, whether by acceleration or otherwise, and all other Indebtedness of the Borrower to the Lender arising hereunder or related hereto:
(a) The Obligations Borrower shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant have duly executed and delivered to the terms Lender the Modification of the Security Agreement to which each Borrower is a party to the extent perfected by the filing Deed of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)Trust.
(b) In The Borrower shall have furnished the event any Borrower disposes Affirmation of any assets or Equity Interests as permitted underGeneral Partner Guaranty duly executed and delivered by the General Partner, the Affirmation of Host Marriott Guaranty duly executed and delivered by Host Marriott, and in compliance withthe Affirmation of Guaranty, Section 7.04(bduly executed and delivered by Marriott International, Inc.
(c) The Borrower shall have furnished the Affirmation of Subordination and Attornment Agreement, duly executed and delivered by Operating Tenant and Borrower, affirming, among other things, the subordination of the Operating Lease to the Deed of Trust.
(including any amendment thereof d) The Borrower shall have furnished the Affirmation and Modification of Assignment of Golf Course Lease, duly executed and delivered by Golf Course B Owner and Borrower.
(e) The Borrower shall have furnished the Affirmation and Modification of Subordination Agreement, duly executed and delivered by the General Partner and Host Marriott.
(f) The Borrower shall furnish the Affirmation of Subordination Agreement, duly executed and delivered by Marriott International.
(g) The Borrower shall have furnished to the Lender the Affirmation of Environmental Indemnity Agreement of Host Marriott duly executed and delivered by Host Marriott.
(h) The Borrower shall have duly executed and delivered such financing statements as the Lender or consent thereunder)its counsel shall require to further evidence, confirm and perfect the security interests granted or to be granted in the event that Deed of Trust, Security Agreement and the Parent designates any other documents provided for herein.
(i) The Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with duly executed and delivered such certifications or documentsother and further agreements, if any, documents and instruments as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to Lender or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers its counsel may reasonably request in order to release such Person from its Obligations under further evidence, perfect and preserve any of the Loan Documents and to release collateral security for the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable's obligations provided for herein.
Appears in 1 contract
Sources: Loan Modification Agreement (Desert Springs Marriott Limited Partnership)
Collateral Security. In order to secure the payment of the Loan when due, whether by acceleration or otherwise, and all other Indebtedness of the Borrower to the Lenders arising hereunder or related hereto:
(a) The Obligations Borrower shall be secured by (a) have duly executed and delivered a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and form of Exhibit G hereto (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto"Security Agreement").
(b) In The Borrower shall have furnished the event any Guaranties duly executed and delivered by Marriott.
(c) The Borrower disposes shall have assigned to the Original Lenders, all rights of the Borrower relating to the Hotel under the Management Agreement pursuant to an agreement of assignment ( the "Management Agreement Assignment"), duly executed and delivered by the Borrower and the Manager in the form of Exhibit H hereto.
(d) The Borrower shall have assigned to the Original Lenders, all rights of the Borrower relating to the Hotel under the Purchase Agreement pursuant to an instrument of assignment (the "Purchase Agreement Assignment"), duly executed and delivered by the Borrower and Marriott in the form of Exhibit I hereto.
(e) The General Partner and Marriott shall each have subordinated repayment of any assets or Equity Interests as permitted under, loan advances and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parentinterest thereon and, in the case of designating a the General Partner, capital contributions at any time made by the General Partner to the Borrower as an Excluded Subsidiary hereunder) to the prior payment of the Loan, and shall have provided assigned to the Administrative Agent with Original Lenders the right to repayment of any and all such certifications loan advances and interest thereon or documentscapital contributions made by the General Partner to the Borrower, if any, pursuant to the provisions of a subordination agreement in the form attached hereto as Exhibit J (the "Subordination Agreement.").
(f) The Borrower shall have duly executed and delivered such financing statements as the Administrative Agent Lenders or their counsel shall reasonably requestrequire to further evidence, confirm and perfect the Administrative Agent willsecurity interests granted or to be granted in the Security Agreement, at Mortgage, Subordination Agreement and in the Borrowers’ sole cost other collateral assignments provided for in this Section 4.2.
(g) The Borrower shall have duly executed and expensedelivered such other and further agreements, documents and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents instruments as the Borrowers Lenders or their counsel may reasonably request to further evidence, perfect and preserve any of the collateral security for the Borrower's obligations provided for in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicablethis Section 4.2.
Appears in 1 contract
Sources: Loan Agreement (Courtyard by Marriott Limited Partnership)
Collateral Security. (a) The Obligations shall be secured by (a) 2.1 As security for the prompt payment, performance and satisfaction of all Obligations, Guarantor hereby assigns, pledges, hypothecates, transfers and sets over to Secured Party, all of Guarantor's right, title and interest in and to, and hereby grants to Secured Party a perfected first-priority continuing lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in and to, all Collateralof the following, wherever located, whether now owned or existing or hereafter acquiredacquired or arising, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) together with all replacements, accessions, parts, additions and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; substitutions therefor and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged thereof:
2.2 All Goods and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (Inventory including, without limitation, all stock-in-trade, raw materials, work-in-process and materials used, produced or consumed in Guarantor's business, all tangible personal property held by Guarantor for sale, consignment or lease, or to be furnished under contracts of service and all property which Guarantor has so sold, consigned, leased or furnished, Goods that are returned, reclaimed or repossessed, together with rights of Guarantor as a seller of Goods and rights to returned or repossessed Goods and the delivery proceeds from the sale of legal opinionsany and all Goods and Inventory;
2.3 All Accounts, Consulting Engineer’s reportsContracts, surveysDocument, title insuranceEquipment, environmental assessment reportsFixtures, flood hazard certificationsGeneral Intangibles, evidence Goods, Instrument, Inventory, Proceeds, including, without limitation, (a) rights and remedies under or relating to guaranties, contracts of flood insurancesuretyship, if required, letters of credit and a certification of the name credit and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that other insurance related to the extent that any lease Collateral, (b) rights of stoppage in transit, replevin, repossession, reclamation and other rights and remedies of an unpaid vendor, lienor or secured party, (c) goods described in invoices, documents, contracts or operating/management agreement instruments with respect to, or otherwise representing or evidencing, Collateral, including, without limitation, returned, repossessed and reclaimed goods, and (d) Real Property prohibits assignment deposits by and property of such lease (account Borrowers or operating/management agreement) without other persons securing the consent obligations of account Borrowers;
2.4 All property of Guarantor which at any time Secured Party shall have in its possession, or which is in transit to it; and
2.5 Without limiting the generality of any of the lessor foregoing, all property which is now owned by Guarantor or another party thereunder, which will be acquired by the Borrowers shall not be required to grant a mortgage on the leasehold interest under Guarantor until such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, time as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicableare satisfied.
Appears in 1 contract
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Company shall cause to be secured by (a) granted to the Administrative Agent, for the ratable benefit of the Lenders, a perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter existing or acquired: (i) all of the shares of capital stock of its Subsidiaries now or hereafter directly owned by the Company and all proceeds thereof, pursuant all as more specifically described in the Company Pledge Agreement; (ii) certain of the assets of the Company and all proceeds thereof, all as more specifically described in the Company Security Agreement, the Company Trademark Agreement, the Company Mortgages, the Mexican Assignment Agreement and each Collateral Assignment to which the Company is a party; (iii) certain of the assets of its Subsidiaries now or hereafter directly or indirectly owned by such Subsidiaries and all proceeds thereof, all as more specifically described in the Subsidiary Security Agreement, the Subsidiary Trademark Agreement, the Subsidiary Pledge Agreements, the Subsidiary Mortgages and each Collateral Assignment to which each Subsidiary of the Company is a party; and (iv) certain assets of the Parent, including, without limitation, the shares of capital stock of the Company and all the proceeds thereof, all as more specifically described in the Parent Pledge Agreement.
(b) Concurrently with the consummation of any Permitted Acquisition or the formation of any new Subsidiary of the Company which is permitted hereunder, the Company shall
(i) in the case of a Permitted Acquisition of stock by the Company or any of its Subsidiaries or the formation of a new Subsidiary of the Company: (A) deliver or cause to be delivered to the Administrative Agent all of the certificates representing the capital stock (or other instruments or securities evidencing ownership) of such new Subsidiary which is being acquired or formed, beneficially owned by the Company or such Subsidiary, as additional collateral for the Obligations, to be held by the Administrative Agent in accordance with the terms of the Security Company Pledge Agreement or a Subsidiary Pledge Agreement, as the case may be; and (B) cause such new Subsidiary which is being acquired or formed to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) deliver to the Administrative Agent on behalf (1) duly executed counterpart signature pages to each of the Secured Parties Subsidiary Guaranty, the Subsidiary Security Agreement and the Intercompany Security Agreement, in the forms attached respectively thereto as Annex I, together with the authorization to the Administrative Agent and the Lenders to attach such signature pages to the Subsidiary Guaranty, the Subsidiary Security Agreement and the Intercompany Security Agreement, respectively, the effect of which shall be that as of the date set forth on such signature pages such new Subsidiary shall become a party to each such agreement and be bound by the terms thereof, (2) if such Subsidiary owns any capital stock of any other Subsidiary of the Company, a Subsidiary Pledge Agreement, (3) if such Subsidiary owns any U.S. registered trademarks, a Subsidiary Trademark Agreement, (4) Intercompany Demand Note, duly endorsed, pledged and delivered to the Administrative Agent under the Company Pledge Agreement, (5) such Uniform Commercial Code financing statements as shall be required to perfect the security interest of the Administrative Agent and the Lenders in the Collateral being pledged by such new Subsidiary pursuant to the Pledge Agreement; Subsidiary Security Agreement and (c6) unless otherwise agreed to in writing by the Required Lenders, a pledge Subsidiary Mortgage, together with such title insurance policies, surveys and appraisals as the Administrative Agent may have reasonably requested;
(ii) in the case of a Permitted Acquisition of assets or the acquisition of any fee interest in real property (other than any such property deemed immaterial by the Administrative Agent) by the Company or any of its Subsidiaries, deliver or cause to be delivered by the Company or such Subsidiary acquiring such assets, (A) such Uniform Commercial Code financing statements as shall be required to perfect the security interest of the capital stock Administrative Agent and the Lenders in the assets being so acquired and (B) unless otherwise agreed to in writing by the Required Lenders, a Company Mortgage or Subsidiary Mortgage, as the case may be, together with such title insurance policies, surveys and appraisals as the Administrative Agent may have reasonably requested; and
(iii) in any case, provide such other Equity Interests documentation, including, without limitation, one or more opinions of each Foreign counsel reasonably satisfactory to the Administrative Agent, articles of incorporation, by-laws and resolutions, which in the reasonable opinion of the Administrative Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary. Notwithstanding the foregoing, nothing contained in this Section 2.17 shall require (A) the Company or any Subsidiary (provided that not to pledge more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign foreign Subsidiary of a Borrower shall be or (B) any foreign Subsidiary to take any action otherwise required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later timeby this Section 2.17, if any, to which in either case the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers Company shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor have determined that such pledge or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)action will have an adverse tax consequence.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by first priority perfected Liens on:
(ai) a perfected first-priority security interest all personal property of the Company;
(subject ii) until the Pekin Lenders and the ICP Lenders have received the Paydown Amount in full, all personal property of ICP (the “ICP Personal Property Collateral”);
(iii) all personal property of PEC pursuant to Permitted Liens entitled the PEC Pledge Agreement and the PEC Security Agreement (collectively, the assets referenced in clauses (i), (ii) and (iii) of this Section 6.3 are referred to priority under Applicable Lawherein as the “Personal Property Collateral”);
(iv) all real property and improvements of the Company;
(v) until the Pekin Lenders and the ICP Lenders have received the Paydown Amount in full, all real property and improvements of ICP (the “ICP Real Property Collateral” and together with the ICP Personal Property Collateral, the “ICP Collateral” and collectively, the assets referenced in clauses (iv) and (v) of this Section 6.3 are referred to herein as the “Real Property Collateral”). In each case, whether now owned or hereafter acquiredacquired (the Personal Property Collateral and the Real Property Collateral are collectively referred to as the “Collateral”), subject only to Permitted Liens or other exceptions approved in writing by Agent. Prior to or substantially contemporaneously with the date of this Agreement and at such other times as Agent may request (including each time the Company, Pekin or PEC acquires any real property or any personal property not already subject to the Liens required herein), the Company shall execute and deliver to (or shall cause to be delivered) Agent such security agreements, pledge agreements, assignments, mortgages, deeds of trust, and other documents and agreements requested by Agent for the purpose of creating, perfecting, and maintaining a perfected Lien on the Collateral, subject only to Permitted Liens or other exceptions approved in writing by Agent. The Company hereby authorizes Agent to file such Uniform Commercial Code financing statements to record such mortgages, deeds of trust, and other documents in the applicable real property records as Agent reasonably determines are necessary or advisable to perfect the security interests in and Liens on the Collateral. Payment and performance of the Obligations shall also be guaranteed by PEC pursuant to the terms PEC Guaranty. Upon receipt of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Paydown Amount, Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of immediately release its security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)ICP Collateral.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, 2.7 New Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.6.12
Appears in 1 contract
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by first priority perfected Liens on the following property (aexcept that the Lien on property described in the PEI Security Agreement shall be a second priority perfected Lien):
(i) a perfected first-priority security interest all personal property of the Company;
(subject ii) all personal property of ICP (the “ICP Personal Property Collateral”);
(iii) all personal property of PEC pursuant to Permitted Liens entitled the PEC Pledge Agreement and the PEC Security Agreement;
(iv) the personal property of PEI described in the PEI Security Agreement (collectively, the assets referenced in clauses (i), (ii), (iii) and (iv) of this Section 6.3 are referred to priority under Applicable Lawherein as the “Personal Property Collateral”);
(v) all real property and improvements of the Company;
(vi) all real property and improvements of ICP (the “ICP Real Property Collateral” and together with the ICP Personal Property Collateral, the “ICP Collateral” and collectively, the assets referenced in all clauses (v) and (vi) of this Section 6.3 are referred to herein as the “Real Property Collateral”). In each case, whether now owned or hereafter acquiredacquired (the Personal Property Collateral and the Real Property Collateral and such additional personal property or real property that may be pledged from time to time to secure in whole or in part the Obligations are collectively referred to as the “Collateral”), subject only to Permitted Liens or other exceptions approved in writing by Agent. Prior to or substantially contemporaneously with the date of this Agreement and at such other times as Agent may request (including each time the Company, ICP or PEC acquires any real property or any personal property not already subject to the Liens required herein), the Company shall execute and deliver to (or shall cause to be delivered) Agent such security agreements, pledge agreements, assignments, mortgages, deeds of trust, and other documents and agreements requested by Agent for the purpose of creating, perfecting, and maintaining a perfected Lien on the Collateral, subject only to Permitted Liens or other exceptions approved in writing by Agent. The Company hereby authorizes Agent to file such Uniform Commercial Code financing statements to record such mortgages, deeds of trust, and other documents in the applicable real property records as Agent reasonably determines are necessary or advisable to perfect the security interests in and Liens on the Collateral. Payment and performance of the Obligations shall also be guaranteed by PEC pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected PEC Guaranty and by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties ICP pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)ICP Guaranty.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, 2.10 Section 7.04(b) (including any amendment thereof or consent thereunder6.12(h), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (ai) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable applicable Law) in all Collateralpersonal property of the Domestic Loan Parties (other than Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower Domestic Loan Party is a party to the extent perfected by the filing of UCC financing statements; , and (bii) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers each Domestic Subsidiary (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiariesan Excluded Subsidiary) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower Domestic Loan Party shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged), in each case pursuant to the Pledge Agreement; provided that the Borrowers Domestic Loan Parties hereby agree, upon the request of the Administrative Agent and or the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower Domestic Loan Party (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent Company to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers Domestic Loan Parties shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (iiB) mortgages with respect to Material Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower Domestic Loan Party disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) 7.05 (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default or Event of Default would result from such designationtherefrom, and so long as such Borrower (Domestic Loan Party or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) Company shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the BorrowersLoan Parties’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as such Domestic Loan Party or the Borrowers Company may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or BorrowerSubsidiary, as applicable.
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Collateral Security. (a) The Obligations shall be secured by (ai) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable applicable Law) in all Collateralpersonal property of the Domestic Loan Parties (other than Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower Domestic Loan Party is a party to the extent perfected by the filing of UCC financing statements; , and (bii) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers each Domestic Subsidiary (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiariesan Excluded Subsidiary) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower Domestic Loan Party shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged), in each case pursuant to the Pledge Agreement; provided that the Borrowers Domestic Loan Parties hereby agree, upon the request of the Administrative Agent and or the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower Domestic Loan Party (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent Company to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).151 158477613_2174043865_5
(b) In the event any Borrower Domestic Loan Party disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) 7.05 (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default or Event of Default would result from such designationtherefrom, and so long as such Borrower (Domestic Loan Party or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) Company shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the BorrowersLoan Parties’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as such Domestic Loan Party or the Borrowers Company may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or BorrowerSubsidiary, as applicable. [Remainder of page intentionally left blank; signature pages follow.] 152 158477613_2174043865_5
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Stericycle Inc)
Collateral Security. (a) 4.1 COMPOSITION OF THE COLLATERAL; SECURITY INTERESTS GRANTED PURSUANT TO ORIGINAL SOUTHTRUST LOAN DOCUMENTS. The Obligations shall be secured by (a) property in which a perfected first-priority security interest (subject is granted or acknowledged pursuant to Permitted Liens entitled the provisions of Section and hereof or pursuant to priority under Applicable Law) in all the provisions of any Security Document is herein collectively called the "Collateral." The Collateral, whether now owned or hereafter acquiredtogether with all of the Borrowers' other property of any kind held by the Lender, shall stand as one general, continuing collateral security for all Obligations and, except as expressly provided in Section 4.8 hereof, may be retained by the Lender until all Obligations have been satisfied in full. Each of the Borrowers hereby acknowledges that, pursuant to the terms Original SouthTrust Loan Documents, each of the Security Agreement to which each Borrower is a party Borrowers granted to the extent perfected Lender valid, first priority security interests and liens on all of the Collateral owned by them (or in which any of them has any interest) as security for the Indebtedness and obligations evidenced by the filing Original SouthTrust Loan Documents. Each of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon ratifies and confirms the request grant of the Administrative Agent such security interests and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney liens in favor of the Parent to dispose Lender, as security for all the Obligations. Each of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory hereby agrees that the provisions of Sections 4.2 and 4.3 hereof, in addition to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent providing for the Secured Parties with respect to the perfection present grant of security interests and liens in the Motor Vehicles; Collateral to secure the full and prompt payment and performance of all Obligations, shall be construed as (A) a ratification and restatement of their respective grants of security interests and liens under and pursuant to the Original SouthTrust Loan Documents as security for the Obligations, and (iiB) mortgages with respect to Real Property a representation and to take warranty by Borrowers that all such other steps security interests and make such other deliveries liens remain in full force and effect as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)Closing Date.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Sources: Loan and Security Agreement (Medical Technology Systems Inc /De/)
Collateral Security. The Borrowers will at all times cause (ai) The Obligations shall Petroleum Property representing in value, as determined by reference to the most recent Reserve Report, not less than 60% of the Hydrocarbon Property Base and (ii) all outstanding capital stock, limited liability company interests or partnership interests directly or indirectly owned by HEC of each wholly-owned and (to the extent not restricted by customary provisions in joint venture agreements or similar agreements) non-wholly owned Material Subsidiary of HEC (including without limitation any Person (including without limitation any Subsidiary) which becomes a Material Subsidiary after the date hereof), to be secured by (a) a perfected subject to valid first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Collateral Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesBanks pursuant to the Collateral Documents. In the event that the daily average aggregate unpaid principal amount of Debt of the Borrowers exceeds 50% of the Debt Limit for a period of ninety (90) days, the Required Banks may deliver to the Borrowers a written demand for additional collateral security pursuant to this Section. Upon receipt of such demand, the Borrowers will, or will cause its Subsidiaries to, grant to the Collateral Agent for the benefit of the Banks, within sixty (60) days of receipt of such demand, as security for the Indebtedness, a perfected first-priority security interest Lien on additional Petroleum Property such that Petroleum Property representing in such assetsvalue, provided that as determined by reference to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent most recent Reserve Report, not less than 80% of the lessor or another party thereunder, the Borrowers Hydrocarbon Property Base shall not thereafter be required subject to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently first-priority Liens. The Liens will be created and perfected by and in good faith use its reasonable best efforts to obtain accordance with the consent (which consent shall be provisions of security agreements and financing statements, deeds of trust or other Collateral Documents, all in form and substance reasonably satisfactory to the Administrative AgentRequired Banks in sufficient executed (and acknowledged where necessary or appropriate) counterparts for recording purposes. The Borrowers will furnish or cause to be furnished to each of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage Banks in connection therewith opinions satisfactory in form and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted substance to the Administrative Agent with respect Required Banks from counsel satisfactory to such assets, Equity Interests or Borrower, the Required Banks as applicable.to such
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) Borrowers hereby grant the Stockholders’ Representative a perfected first-priority lien security interest in the Collateral as collateral security for the Borrowers’ obligations under this Note. For this purpose, “Collateral” shall mean, collectively: (subject i) either Borrower’s contracts specified on Annex A (collectively, the “Contracts”), (ii) all Accounts arising under the Contracts, (ii) any Supporting Obligations related to Permitted Liens entitled the Accounts arising under the Contracts; (iii) all books and records pertaining to priority under Applicable Law) in all the Collateral, and (iv) the products and/or Proceeds of the foregoing, in each case whether now owned or hereafter acquired, pursuant to acquired in the terms future. All of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but capitalized terms used in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, clauses (i) certificates through (iv) above shall have the meanings ascribed to them under the UCC as in effect, from time to time, in the State of titles New York; provided, however, that if, by reason of mandatory provisions of law, the perfection or the effect of perfection or non-perfection of the security interest granted hereunder in any Collateral is governed by the UCC as in effect in a jurisdiction other than New York, then an affected capitalized term shall have the meaning ascribed to it under the UCC as in effect in such other jurisdiction for all purposes of the provisions hereof relating to such perfection or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates effect of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (perfection or non-perfection. This Note is subject to a Lien Subordination Agreement dated of even date herewith between the Slipstream Communications, LLC, an Anguillan limited power of attorney in favor of the Parent liability company and senior lender to dispose of titled equipmentBorrowers (“Senior Lender”) andand Stockholders’ Representative. Borrower hereby authorizes Stockholders’ Representative to file such financing statements, if required by the Administrative Agent, the Borrowers financing statement amendments and continuation statements as Stockholders’ Representative shall retain Corporation Service Company (reasonably determine necessary or other similar company satisfactory appropriate to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (perfect or such other company) will agree to act as agent for the Secured Parties with respect to continue the perfection of the security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property interest granted hereby and to take such other steps and make such other deliveries as may be reasonably requested by reflect the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)assignments contemplated herein.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Creative Realities, Inc.)
Collateral Security. (a) The Obligations shall be secured by (a) As security for the Existing Indebtedness, the Borrower, for itself and on behalf of the Subject Subsidiaries, and Total Tec have granted a perfected first-second priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralinterest, whether now owned or hereafter acquired, pursuant subordinate only to the terms Senior Indebtedness to the extent set forth in the Subordination Agreements, in the Collateral owned by each of them and described in the 2000 Security Agreement and the 2007 Security Agreements; provided, that the parties acknowledge that, at Borrower’s request, the Lenders have released their security interest in the Accounts. Borrower hereby agrees, with and for the benefit of each of the Lenders and the Agent, that all Collateral described in the 2000 Security Agreement and the 2007 Security Agreement (other than the released Accounts) shall constitute collateral security for the Obligations hereunder and under the Notes. In furtherance, and not in limitation, of the foregoing, Borrower hereby ratifies and confirms all the terms and conditions contained in the 2000 Security Agreement and the 2007 Security Agreement to which each Borrower it is a party party, and agrees to cause Total Tec to ratify and confirm the extent perfected by the filing of UCC financing statements; (b) 2007 Security Agreement to which it is a pledge of 100% of the capital stock or other Equity Interests of such Borrowers party, and to agree that all Collateral described therein (other than the ParentAccounts) shall constitute collateral security for the Obligations hereunder and of under the Non-Borrower Subsidiaries Notes.
(other than the Foreign Subsidiariesb) In addition to the Administrative Agent on behalf foregoing, for purposes of ratifying and confirming the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge grant of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney security interests in favor of the Parent to dispose of titled equipment) and, if required Agent and the Lenders by the Administrative AgentSubject Subsidiaries, the Borrowers shall retain Corporation Service Company Borrower hereby agrees to cause each of the following Subject Subsidiaries to execute and deliver a Security Agreement in favor of the Agent and the Lenders, in substantially the form set forth as Exhibit D attached hereto, in each case, to be delivered contemporaneously with the execution and delivery of this Agreement:
(or other similar company satisfactory to the Administrative Agenti) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and ▇▇▇▇▇ Data, Inc., a Minnesota corporation;
(ii) mortgages ▇▇▇▇ Microproducts Canada Inc., a California corporation;
(iii) ▇▇▇▇ Microproducts-Future Tech, Inc., a California corporation; and
(iv) New ProSys Corp., a Georgia corporation.
(c) In addition to the foregoing, Borrower hereby agrees, if and to the extent no longer prohibited by the Wachovia Bank Group Senior ABS Agreement, on or prior to December 31, 2008, to grant to Lenders, for their ratable benefit, and to the Agent on their behalf, a second priority lien and security interest in and to all Accounts owned by Borrower together with respect all proceeds and products of the foregoing, wherever located and whether now existing or arising in the future, pursuant to Real Property a Security Agreement containing terms and conditions substantially similar in all respects to the 2000 and 2007 Security Agreements, with appropriate adjustments to reference the Notes and this Agreement. The parties acknowledge that the Wachovia Bank Group Senior ABS Agreement currently prohibits the grant of a subordinate security interest in Accounts to the Lenders as contemplated herein, and that Borrower is currently seeking to refinance the Indebtedness evidenced thereby. Accordingly, in connection with such potential refinancing, Borrower hereby agrees to seek the consent of the lenders with whom it is negotiating to the grant of the security interest referred to herein, and to take such other steps all actions reasonably necessary, and make such other deliveries as may be reasonably requested by the Administrative Agent to use its best efforts, acting in good faith, to obtain their consent. If, for any reason (including, without limitation, the delivery of legal opinionsinability to refinance the Indebtedness incurred under the Wachovia Bank Group Senior ABS Agreement), Consulting Engineer’s reportsthe Borrower has not granted the security interest described herein to the Agent and the Lenders, surveysas additional Collateral securing the Obligations, title insuranceby December 31, environmental assessment reports2008, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on Borrower shall pay to the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the ratable benefit of the Secured PartiesLenders, a perfected first-priority security interest an additional fee (the “December 2008 Fee”) in such assets, provided that to the extent that any lease amount of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent $141,625.00. The December 2008 Fee shall be due and payable on December 31, 2008, in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor cash or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)immediately available funds.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) a perfected (except in Real Property and motor vehicles) first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralassets of each Borrower, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries▇▇▇▇) to the Administrative Agent on behalf of the Secured Parties Lenders and the Agents pursuant to the Pledge Agreement; and (c) a pledge of 65% of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged)Subsidiary; provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefordays, or such other later time, if any, titles to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles motor vehicles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, reports and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders and the Agents, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) The Borrowers hereby acknowledge that (i) any and all Uniform Commercial Code financing statements (together with all rights thereunder) filed in connection with the Existing Credit Agreement naming Fleet National Bank, as secured party, and such Borrower, as debtor, have been, or simultaneously herewith are being, assigned to the Administrative Agent and shall be effective to perfect the Administrative Agent’s security interest granted by such Borrower pursuant to the Loan Documents to the extent that such security interest may be perfected by the filing of Uniform Commercial Code financing statements and (ii) such prior filings represent pre-filings of Uniform Commercial Code financing statements for purposes of so perfecting the security interest granted by the Borrowers under the Loan Documents. Until all of the Obligations have been finally paid and satisfied in full, the provisions of this Section shall continue to apply, and such filings shall continue to be effective and not subject to any right of termination in respect of the security interests granted herein, whether any obligations under the Existing Credit Agreement are to be discharged with the proceeds of any of the Loans or are to continue independently or otherwise.
(c) In the event any Borrower disposes the Borrowers dispose of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Sources: Revolving Credit Agreement (Casella Waste Systems Inc)
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Borrower shall cause to be secured by (a) granted to the Agent, for the ratable benefit of the Lenders, a first priority perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter acquired, existing or acquired subject only to the Liens permitted to be incurred pursuant to Section 7.3 hereof: (i) all of the shares of capital stock (or other equity interests of each Subsidiary if such Subsidiary is not a corporation) of each Subsidiary of the Borrower now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Borrower Pledge Agreement and the Subsidiary Pledge Agreements; (ii) certain of the assets of the Borrower and all proceeds thereof, all as more specifically described in the Borrower Security Agreement and the Mortgages; and (iii) certain of the assets of each Subsidiary now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Subsidiary Security Agreement and the Mortgages. To the extent the Agent for the benefit of the Lenders does not have a first priority perfected security interest in any assets of the Borrower or any other Loan Party required to be pledged as described above which is of the type described in the Borrower Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement or the Subsidiary Security Agreement or which consists of real property of the type described in subsection (c) below, the Borrower will grant, and cause each other Loan Party to grant, to the Agent for itself and the benefit of the Lenders a first priority perfected security interest in such assets subject only to the Liens permitted pursuant to Section 7.3 hereof. In connection with any sales of assets permitted CKE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT hereunder, the Agent will release and terminate the liens and security interests granted under the Security Documents with respect to such assets and no further consent of the Lenders will be required with respect to any such release.
(b) Concurrently with the consummation of any Permitted Acquisition or any other acquisition of any asset (whether by purchase, merger, contribution, license or otherwise) which is of the type described in the Borrower Security Agreement, the Subsidiary Security Agreement, the Borrower Pledge Agreement or the Subsidiary Pledge Agreement by the Borrower or any Subsidiary of the Borrower (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) (an "ACQUIRING SUBSIDIARY") or the formation of any new Subsidiary (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) of the Borrower or upon an Immaterial Subsidiary ceasing to qualify or be designated as an Immaterial Subsidiary (conversion from the status of an Immaterial Subsidiary to a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as a "CONVERSION"), the Borrower shall:
(i) in the case of a Permitted Acquisition of stock or other equity interest or any other acquisition of stock or other equity interest (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary of the Borrower or the formation of such a new Subsidiary or a Conversion: (A) deliver or cause to be delivered to the Agent all of the certificates representing the capital stock (or other equity interest if such equity interests are represented by a certificate or certificates) of such new Subsidiary which is being acquired or formed or converted (or Investment if such Investment is not an Immaterial Investment), beneficially owned by the Borrower or such Acquiring Subsidiary, as additional collateral for the Obligations, to be held by the Agent in accordance with the terms of the Borrower Pledge Agreement or a Subsidiary Pledge Agreement, as the case may be; and (B) cause such Acquiring Subsidiary (which is not already a party thereto) or new Subsidiary which is being acquired or formed or converted to deliver to the Agent (1) duly executed counterpart signature pages to each of the Guaranty, and the Subsidiary Security Agreement Agreement, in the forms attached respectively thereto as Annex I, together with the authorization to the Agent and the Lenders to attach such signature pages to the Guaranty and the Subsidiary Security Agreement, respectively, the effect of which each Borrower is shall be that as of the date set forth on such signature pages such Acquiring Subsidiary or such new or converted Subsidiary, as the case may be, shall become a party to the extent perfected each such agreement and be bound by the filing of UCC financing statements; terms thereof and any revisions to the schedules to the Subsidiary Security Agreement necessary in connection therewith, (b2) a pledge of 100% of the if such new or converted Subsidiary owns any capital stock or other Equity Interests of equity interest or if such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) Acquiring Subsidiary is not already a party to the Administrative Agent on behalf of the Secured Parties pursuant to the a Subsidiary Pledge Agreement; and (c) , a pledge of Subsidiary Pledge Agreement duly executed by such new or converted Subsidiary or such Acquiring Subsidiary, as the capital stock case may be, or if such new or converted Subsidiary owns any copyrights, trademarks, patents or other Equity Interests of each Foreign Subsidiary intellectual property, such additional Security Documents as requested by the Agent, (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any 3) such first-tier Foreign Subsidiary of a Borrower Uniform Commercial Code financing statements as shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that perfect the Borrowers hereby agree, upon the request security interest of the Administrative Agent and the Required LendersLenders in the Collateral being pledged by such new Subsidiary pursuant to the Subsidiary Security Agreement, to deliver, as promptly as practicable, but in any event within ninety and (904) ten (10) days after request thereforprior written notice of any such Permitted Acquisition, other acquisition, formation or Conversion. CKE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
(ii) in the case of a Permitted Acquisition of assets or any other acquisition of assets (including equity interests of a Person other than a corporation) (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement or the formation of such a new Subsidiary or a Conversion into a Person which in either case is not a corporation, deliver or cause to be delivered by the Borrower or such other later time, if any, to which the Administrative Agent may agreeAcquiring Subsidiary acquiring such assets or forming such new Subsidiary, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with such Uniform Commercial Code financing statements as shall be required to perfect the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor security interest of the Parent to dispose Agent and the Lenders in the assets being so acquired, (B) if such assets include copyrights, trademarks, patents or other intellectual property, such additional Security Documents as requested by the Agent, (C) any additional instruments or documents evidencing the security interest of titled equipment) and, if the Agent reasonably required by the Administrative AgentAgent and (D) ten (10) days prior written notice of any such Permitted Acquisition, the Borrowers shall retain Corporation Service Company other acquisition, formation or Conversion; and
(or other similar company satisfactory to the Administrative Agentiii) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company in any case (or A) provide such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (documentation, including, without limitation, the delivery one or more opinions of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance counsel reasonably satisfactory to the Administrative Agent) , articles of incorporation, by-laws and resolutions (or equivalent organizational and authorization documents), which in the reasonable opinion of the applicable lessor Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary or other party acquisition (whether by purchase, merger, contribution or otherwise) or Conversion, (B) cause any newly formed or acquired Immaterial Subsidiary which is or is to such leasehold mortgage become a Subordinated Guarantor, to execute and deliver a counterpart to the Guaranty, and (andC) if, upon as a result of the receipt consummation of such consentany transaction or transactions, there is a significant change in the Borrowers shall information provided by the Borrower on Schedule 5.18, promptly grant such leasehold mortgage provide the Agent with a new schedule which reflects the then current corporate structure of the Borrower and comply with its Subsidiaries certified by an Authorized Officer of the other provisions of this Section 10.15 with respect thereto)Borrower.
(bc) In Concurrently with the event any Borrower disposes acquisition of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) interest (including a leasehold interest) in any amendment thereof real property by the Borrower or consent thereunder), or any Subsidiary of the Borrower in any state that does not at the event that the Parent designates any Borrower as an Excluded Subsidiary or time of acquisition assess a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably requestmortgage recording tax, the Administrative Agent will, at Borrower shall deliver or cause to be delivered to the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent Mortgages with respect to such assetsreal property interest, Equity Interests or Borrowertogether with title insurance policies, surveys, appraisals, opinions of counsels and such other documentation as applicablethe Agent may reasonably request.
Appears in 1 contract
Collateral Security. (a) The Obligations or Canadian Obligations, as applicable, shall be secured by (a) a perfected first-first priority security interest (subject to purchase money liens or other Permitted Liens entitled to priority under Applicable Lawapplicable law) in all Collateralassets (other than Real Property and motor vehicle titles) of each Domestic Borrower, whether now owned or hereafter acquired, pursuant to the terms of the Domestic Security and Pledge Agreement to which each Domestic Borrower is a party; (b) a perfected first priority security interest (subject to purchase money liens or other Permitted Liens entitled to priority under applicable law) in all assets (other than Real Property and motor vehicles) of each Canadian Borrower, whether now owned or hereafter acquired, pursuant to the terms of a Canadian Security Agreement to which each Canadian Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (bc) in the case of the Domestic Borrowers, a pledge of 100% of the capital stock or other Equity Interests equity interests of such Domestic Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties Banks pursuant to the Domestic Pledge AgreementAgreement to secure the Obligations; and (cd) in the case of the First Tier Canadian Borrowers, a pledge of 65% of the capital stock or other Equity Interests equity interests of each Foreign Subsidiary (provided that not more than 65such First Tier Canadian Borrowers to the Administrative Agent on behalf of the Domestic Banks pursuant to the Canadian Pledge Agreement to secure the Domestic Obligations, a pledge of 35% of the total voting power of all outstanding capital stock or other Equity Interest equity interests of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the First Tier Canadian Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that Canadian Banks pursuant to the extent that any lease Canadian Pledge Agreement to secure the Canadian Obligations and a pledge of (65% of the capital stock or operating/management agreement with respect to) Real Property prohibits assignment other equity interests of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) Agent for the benefit of the applicable lessor or other party Canadian Banks pursuant to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or Canadian Pledge Agreement in the event that form of a second-priority lien to secure the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder Canadian Obligations; and no Default would result from such designation, and so long as such Borrower (or the Parent, e) in the case of designating the Second Tier Canadian Borrowers, a Borrower as an Excluded Subsidiary hereunder) shall have provided pledge of 100% of the Administrative Agent with capital stock or other equity interests of such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Second Tier Canadian Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect for the benefit of the Canadian Banks to such assets, Equity Interests or Borrower, as applicablesecure the Canadian Obligations.
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) a perfected (except in Real Property and motor vehicles) first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralassets of each Borrower, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign SubsidiariesSubsidiaries and ▇▇▇▇) to the Administrative Agent on behalf of the Secured Parties Lenders and the Agents pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain have retained Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties Lenders and the Agents with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, landlord consents and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders and the Agents, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree Borrower agrees to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Casella Waste Systems Inc)
Collateral Security. (a) The Obligations shall be secured by (a) a perfected (except in Motor Vehicles) first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralassets of each Borrower (except Real Property), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign SubsidiariesSubsidiaries and ▇▇▇▇) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain have retained Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, landlord consents and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree Borrower agrees to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) a perfected (except in the case of Real Property and motor vehicles, subject to the following proviso) first-priority security interest (subject only to Permitted Liens entitled to priority under Applicable LawLiens) in all Collateralassets of each Borrower (other than the Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statementsparty; (b) a pledge of 100% of the capital stock or other Equity Interests equity interests (or in the case of a foreign Subsidiary, 65% of the capital stock or other equity interests) of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties Lenders and the Administrative Agent pursuant to the Pledge AgreementSecurity Documents; and (c) a pledge of 65% of the capital stock or other Equity Interests equity interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged)foreign Subsidiary; provided that the Borrowers hereby agree, upon the request of notice from the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefordays, or such other later time, if any, titles to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles motor vehicles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s engineer's reports, surveys, environmental site assessments and title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured PartiesLenders and the Administrative Agent, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) The Borrowers hereby acknowledge that (i) any and all Uniform Commercial Code financing statements filed in connection with the Prior Credit Agreement naming the Administrative Agent, as secured party, and such Borrower, as debtor, shall be effective to perfect the Administrative Agent's security interest granted by such Borrower pursuant to the Loan Documents to the extent that such security interest may be perfected by the filing of Uniform Commercial Code financing statements and (ii) such prior filings represent pre-filings of Uniform Commercial Code financing statements for purposes of so perfecting the security interest granted by the Borrowers under the Loan Documents. Until all of the Obligations have been finally paid and satisfied in full, the provisions of this s. 12(b) shall continue to apply, and such filings shall continue to be effective and not subject to any right of termination in respect of the security interests granted herein, whether any obligations under the Prior Credit Agreement are to be discharged with the proceeds of any of the Loans or are to continue independently or otherwise.
(c) In the event any Borrower disposes the Borrowers dispose of any assets or Equity Interests as permitted under, in accordance with s. 8.4.2 (and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunders. 4.4.1 where applicable), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ ' sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections Inc/De)
Collateral Security. (a) The Obligations shall be secured by (ai) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable applicable Law) in all Collateralpersonal property of the Domestic Loan Parties (other than Excluded Assets), whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement to which each Borrower Domestic Loan Party is a party to the extent perfected by the filing of UCC financing statements; , and (bii) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers each Domestic Subsidiary (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiariesan Excluded Subsidiary) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower Domestic Loan Party shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged), in each case pursuant to the Pledge Agreement; provided that the Borrowers Domestic Loan Parties hereby agree, upon the request of the Administrative Agent and or the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower Domestic Loan Party (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent Company to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers Domestic Loan Parties shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (iiB) mortgages with respect to Material Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower Domestic Loan Party disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) 7.05 (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default or Event of Default would result from such designationtherefrom, and so long as such Borrower (Domestic Loan Party or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) Company shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the BorrowersLoan Parties’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as such Domestic Loan Party or the Borrowers Company may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or BorrowerSubsidiary, as applicable. [Signature pages followintentionally omitted] To: Bank of America, N.A., as Administrative Agent Ladies and Gentlemen: Reference is made to that certain Credit Agreement, dated as of November 17, 2017 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Agreement;” the terms defined therein being used herein as therein defined), among Stericycle, Inc., a Delaware corporation (the “Company”), the Designated Borrowers from time to time party thereto, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, Swing Line Lender and an L/C Issuer. The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the ______________________________ of the Company, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Company, and that: [Use following paragraph 1 for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial statements required by Section 6.01(a) of the Agreement for the fiscal year of the Company ended as of the above date, together with the report and opinion of an independent certified public accountant required by such section. [Use following paragraph 1 for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Company ended as of the above date. Such financial statements fairly present the financial condition, results of operations and cash flows of the Company and its Consolidated Subsidiaries in accordance with GAAP as at such date and for such period, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Company during the accounting period covered by the attached financial statements.
3. A review of the activities of the Company during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Company performed and observed all its Obligations under the Loan Documents, and
4. The representations and warranties of (i) the Borrowers contained in Article V of the Agreement and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection with the Loan Documents, are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Compliance Certificate, the representations and warranties contained in subsections (a) and (b) of Section 5.05 of the Agreement shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 of the Agreement, including the statements in connection with which this Compliance Certificate is delivered.
5. The financial covenant analyses and information set forth on Schedule 2 attached hereto are true and accurate on and as of the date of this Certificate.
6. Since the date of delivery of the most recent Compliance Certificate, no Persons have become Material Subsidiaries [other than _______________].
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Collateral Security. As collateral security for the Secured ------------------- Obligations, on or before the first Credit Extension and as a condition precedent thereto, the Borrower shall execute and deliver, and shall cause to be executed and delivered, to the Agent for the benefit of the Lenders:
(i) the Borrower Security Agreement pursuant to which the Borrower shall grant to the Agent for the benefit of the Lenders a first priority perfected security interest in and lien upon the collateral described therein, including, without limitation: (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateral, whether now owned or and hereafter acquired, pursuant to the terms acquired capital stock of all directly owned Subsidiaries of the Security Agreement to Borrower which each Borrower is a party to the extent perfected by the filing of UCC financing statements; are not Foreign Subsidiaries, (b) a pledge of 10066% of the capital all now owned and hereafter acquired voting stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; all Subsidiary Borrowers, and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 6566% of the total all now owned and hereafter acquired voting power stock of all outstanding capital stock or other Equity Interest of any such first-tier Significant Foreign Subsidiaries which are not Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agreeBorrowers, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property such additional documents, instruments and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (agreements, including, without limitation, the delivery of legal opinionsUCC-1 financing statements, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if requiredoriginal stock certificates and stock transfer powers, and a certification acknowledgments, consents of and notices to third parties, as the Agent may reasonably require. No later than 30 days following the initial Credit Extension Date the Borrower will: (a) cause to be delivered to the Agent opinions in form and substance and provided by counsel satisfactory to the Agent licensed to practice in jurisdictions in which the Subsidiary Borrowers and all Significant Foreign Subsidiaries which are not Subsidiary Borrowers are organized setting forth any requirements of such jurisdictions relating to the pledge of the name stock of such entities by the Borrower, including, without limitation, requirements relating to the exercise of remedies by the Agent with respect thereto following the occurrence of a Default, and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures (b) take such actions as may be located would be recorded) so as required to provide assure that the Administrative Agent, Agent for the benefit of the Secured Parties, Lenders has a first priority perfected first-priority security interest in such assets, provided that all deposit accounts described on Schedule 2 to the extent Borrower Security Agreement. Following the first ---------- Credit Extension the Borrower shall execute and deliver and shall cause to be executed and delivered from time to time such confirmatory and supplementary security agreements, financing statements, acknowledgments, consents of and notices to third parties and such other documents, instruments and agreements as the Agent may reasonably require to obtain and maintain for the Agent and the Lenders the benefit of the Loan Documents. Without limiting the generality of the foregoing, it is expressly acknowledged and agreed by the Borrower that the Borrower will provide written notice to the Agent of the acquisition or formation of any lease of (or operating/management agreement with respect to) Real Property prohibits assignment Subsidiary following the initial Credit Extension Date no later than 5 Business Days following the consummation of such lease (acquisition or operating/management agreement) without the consent of the lessor formation and promptly provide or another party thereunder, the Borrowers shall not cause to be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory provided to the Administrative Agent) of Agent pursuant to the applicable lessor or other party to such leasehold mortgage Subsidiary Borrower Security Agreement: (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(ba) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Subsidiary which is not a Foreign Subsidiary, all stock certificates evidencing the capital stock of such Subsidiary, and (b) with respect to each Subsidiary which is a Subsidiary Borrower as an Excluded or a Significant Foreign Subsidiary hereunderwhich is not a Subsidiary Borrower, 66% of all now owned and hereafter acquired voting stock of such Subsidiary, and (c) shall have provided the Administrative Agent with such certifications or additional documents, if anyinstruments and agreements, including, without limitation, UCC-1 financing statements, original stock certificates and stock transfer powers, and acknowledgments, consents of and notices to third parties, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicablerequire.
Appears in 1 contract
Sources: Credit Agreement (Qad Inc)
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Borrower shall cause to be secured by (a) granted to the Administrative Agent, for the ratable benefit of the Lenders, a first priority perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter acquired, existing or acquired subject only to the Liens permitted to be incurred pursuant to Section 7.3 hereof: (i) all of the shares of capital stock (or other equity interests of each Subsidiary if such Subsidiary is not a corporation) of each Subsidiary of the Borrower now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Borrower Pledge Agreement and the Subsidiary Pledge Agreements; (ii) certain of the assets of the Borrower and all proceeds thereof, all as more specifically described in the Borrower Security Agreement and the Mortgages; and (iii) certain of the assets of each Subsidiary now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Subsidiary Security Agreement and the Mortgages. To the extent the Administrative Agent for the benefit of the Lenders does not have a first priority perfected security interest in any assets of the Borrower or any other Loan Party required to be pledged as described above which is of the type described in the Borrower Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement or the Subsidiary Security CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Agreement, the Borrower will grant, and cause each other Loan Party to grant, to the Administrative Agent for itself and the benefit of the Lenders a first priority perfected security interest in such assets subject only to the Liens permitted pursuant to Section 7.3 hereof. In connection with any sales of assets permitted hereunder, the Administrative Agent will release and terminate the liens and security interests granted under the Security Documents with respect to such assets and no further consent of the Lenders will be required with respect to any such release.
(b) Concurrently with the consummation of any Permitted Acquisition or any other acquisition of any asset (whether by purchase, merger, contribution, license or otherwise) which is of the type described in the Borrower Security Agreement, the Subsidiary Security Agreement, the Borrower Pledge Agreement or the Subsidiary Pledge Agreement by the Borrower or any Subsidiary of the Borrower (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) (an "ACQUIRING SUBSIDIARY") or the formation of any new Subsidiary (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) of the Borrower or upon an Immaterial Subsidiary ceasing to qualify or be designated as an Immaterial Subsidiary (conversion from the status of an Immaterial Subsidiary to a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as a "CONVERSION"), the Borrower shall:
(i) in the case of a Permitted Acquisition of stock or other equity interest or any other acquisition of stock or other equity interest (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary of the Borrower or the formation of such a new Subsidiary or a Conversion: (A) deliver or cause to be delivered to the Administrative Agent all of the certificates representing the capital stock (or other equity interest if such equity interests are represented by a certificate or certificates) of such new Subsidiary which is being acquired or formed or converted (or Investment if such Investment is not an Immaterial Investment), beneficially owned by the Borrower or such Acquiring Subsidiary, as additional collateral for the Obligations, to be held by the Administrative Agent in accordance with the terms of the Borrower Pledge Agreement or a Subsidiary Pledge Agreement, as the case may be; and (B) cause such Acquiring Subsidiary (which is not already a party thereto) or new Subsidiary which is being acquired or formed or converted to deliver to the Administrative Agent (1) duly executed counterpart signature pages to each of the Guaranty, and the Subsidiary Security Agreement Agreement, in the forms attached respectively thereto as Appendix I, together with the authorization to the Administrative Agent and the Lenders to attach such signature pages to the Guaranty and the Subsidiary Security Agreement, respectively, the effect of which each Borrower is shall be that as of the date set forth on such signature pages such Acquiring Subsidiary or such new or converted Subsidiary, CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT as the case may be, shall become a party to the extent perfected each such agreement and be bound by the filing of UCC financing statements; terms thereof and any revisions to the schedules to the Subsidiary Security Agreement necessary in connection therewith, (b2) a pledge of 100% of the if such new or converted Subsidiary owns any capital stock or other Equity Interests of equity interest or if such Borrowers (Acquiring Subsidiary is not already a party to a Subsidiary Pledge Agreement, a Subsidiary Pledge Agreement duly executed by such new or converted Subsidiary or such Acquiring Subsidiary, as the case may be, or if such new or converted Subsidiary owns any copyrights, trademarks, patents or other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to intellectual property, such additional Security Documents as requested by the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and Agent, (c3) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower Uniform Commercial Code financing statements as shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that perfect the Borrowers hereby agree, upon the request security interest of the Administrative Agent and the Required LendersLenders in the Collateral being pledged by such new Subsidiary pursuant to the Subsidiary Security Agreement, to deliver, as promptly as practicable, but in any event within ninety and (904) ten (10) days after request thereforprior written notice of any such Permitted Acquisition, other acquisition, formation or Conversion.
(ii) in the case of a Permitted Acquisition of assets or any other acquisition of assets (including equity interests of a Person other than a corporation) (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement or the formation of such a new Subsidiary or a Conversion into a Person which in either case is not a corporation, deliver or cause to be delivered by the Borrower or such other later timeAcquiring Subsidiary acquiring such assets or forming such new Subsidiary, if any, (A) such Uniform Commercial Code financing statements as shall be required to which perfect the security interest of the Administrative Agent may agreeand the Lenders in the assets being so acquired, (iB) certificates of titles for all if such assets include copyrights, trademarks, patents or substantially all vehiclesother intellectual property, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed such additional Security Documents as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required requested by the Administrative Agent, (C) any additional instruments or documents evidencing the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to security interest of the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested required by the Administrative Agent and (D) ten (10) days prior written notice of any such Permitted Acquisition, other acquisition, formation or Conversion; and
(iii) in any case (A) provide such other documentation, including, without limitation, the delivery one or more opinions of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance counsel reasonably satisfactory to the Administrative Agent) , articles of incorporation, by-laws and resolutions (or equivalent organizational and authorization documents), which in the reasonable opinion of the applicable lessor Administrative Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary or other party to such leasehold mortgage acquisition (andwhether by purchase, upon merger, contribution or otherwise) or Conversion, and (B) if, as a result of the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes consummation of any assets transaction or Equity Interests as permitted undertransactions, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or there is a significant change in the event that information provided by the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designationon Schedule 5.18, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided promptly provide the Administrative Agent with such certifications or documents, if any, as a new schedule which reflects the Administrative Agent shall reasonably request, then current corporate structure of the Administrative Agent will, at Borrower and its Subsidiaries certified by an Authorized Officer of the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.. CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
(c) [Reserved]
Appears in 1 contract
Collateral Security. (a) The Except as set forth in Schedule 6.14, cause the Obligations shall to be secured by (a) a perfected (except in Motor Vehicles and Real Estate on the Closing 8884322.11 Date) first-priority security interest (subject to Permitted Liens entitled to priority under Applicable applicable Law) in all Collateralof the present and future property and assets, real and personal, of each of the Loan Parties, including, but not limited to, machinery and equipment, inventory and other goods, accounts receivable, owned real estate, leaseholds, fixtures, bank accounts, general intangibles, financial assets, investment property, license rights, patents, trademarks, tradenames, copyrights, chattel paper, insurance proceeds, contract rights, hedge agreements, documents, instruments, indemnification rights, tax refunds and cash of each Loan Party, whether now owned or hereafter acquired, pursuant to the terms of the Security Agreement (including all present and future intercompany debt of each of the Loan Parties and excluding fixed or capital assets subject to which each Borrower is a party purchase money financing or Capitalized Lease permitted under Section 7.03(e) (so long as such financing or lease remains in effect) to the extent perfected by that the filing terms of UCC such financing statementsexpressly prohibits such security interest); and (b) a pledge of one hundred (100% %) of the all present and future capital stock or other Equity Interests of such Borrowers the Loan Parties (other than the ParentBorrower) and of the Non-Borrower their present and future Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf Agent, for the benefit of the Secured Parties pursuant to the Securities Pledge Agreement; and (c) a pledge provided that each of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers Loan Parties hereby agreeagrees, upon the request of the Administrative Agent and the Required LendersAgent, to deliver, as promptly as practicable, but in any event within ninety sixty (9060) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title Motor Vehicles owned by a Borrower (collectively, “Motor Vehicles”) the Loan Parties with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers Loan Parties shall retain have retained Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor VehiclesVehicles owned by the Loan Parties; and (ii) mortgages with respect to Real Property Estate and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineerconsulting engineer’s reports, environmental site assessment reports, other environmental reports, surveys, title insurance, environmental assessment reportslandlord consents, flood hazard certifications, evidence of insurance determination and any necessary flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recordedtitle insurance) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property Estate prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers Loan Parties shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers Loan Parties agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers Loan Parties shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 6.15 with respect thereto).
(b) In . Notwithstanding the event any Borrower disposes foregoing or the provisions of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder6.14(a), or in unless otherwise requested by the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (Administrative Agent or the ParentRequired Lenders at any time in their sole discretion, in the case of designating a Borrower as an Excluded Subsidiary hereunder) Heritage Limited and any other Foreign Subsidiary, if any, shall have provided not be required to provide the Administrative Agent with such certifications or documentsa perfected, if any, first-priority security interest in its properties and assets so long as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost book value of such properties and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrowerin the aggregate for all Foreign Subsidiaries, as applicable.is less than $3,000,000, provided that Heritage Limited and each other Foreign Subsidiary shall guaranty the
Appears in 1 contract
Collateral Security. (a) The Obligations shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority indebtedness, liabilities, and obligations of Borrower under Applicable Law) in all Collateralthis SECTION 3, however created or incurred, whether now owned existing or hereafter acquiredarising, pursuant due or to become due, absolute or contingent, direct or indirect, secured or unsecured, are among the obligations secured by the security interests, liens, and encumbrances created by the Collateral Security Documents delivered to Administrative Agent, and Administrative Agent THIRD AMENDED AND 33 RESTATED CREDIT AGREEMENT and Lenders are entitled to the terms benefit of the Security Agreement Collateral granted thereunder with respect to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; such indebtedness.
(b) a pledge of 100% Notwithstanding the payment in full of the capital stock Loan, the termination of the Commitment, or other Equity Interests the occurrence of such Borrowers the Final Maturity Date, the Collateral shall continue to secure the indebtedness, liabilities, and obligations of Borrower under this SECTION 3 until all Letters of Credit shall have expired and all indebtedness, liabilities, and obligations under this SECTION 3 shall have been paid in full.
(other c) On the termination of the Commitment (or any partial termination of the Commitment which reduces the Commitment to less than the ParentLC Exposure), the Final Maturity Date, and the occurrence of an Event of Default, Required Lenders may require (or in the case of an Event of Default occurring under SECTION 12.1(k), it shall be required automatically) and that Borrower deliver to Administrative Agent cash or U.S. Treasury Bills with maturities of not more than 90 days from the date of delivery (discounted in accordance with customary banking practice to present value to determine amount) in an amount equal at all times to one hundred ten percent (110%) of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) Letter of Credit Exposure, such cash or U.S. Treasury Bills and all interest earned thereon to the constitute cash Collateral for all such Letters of Credit. At such time as such Collateral is required to be and has not been deposited, Administrative Agent on behalf of Lenders shall be entitled to liquidate such of the Secured Parties pursuant other Collateral for the Loan (if any) as is necessary or appropriate in its sole judgment so as to the Pledge Agreement; and create such cash Collateral.
(d) any cash Collateral deposited under CLAUSE (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of above, and all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower interest earned thereon, shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the held by Administrative Agent and invested and reinvested at the Required Lendersexpense and the written direction of Borrower, to deliver, as promptly as practicable, but in any event within U.S. Treasury Bills with maturities of no more than ninety (90) days after request therefor, or such other later time, if any, to which from the Administrative Agent may agree, (i) certificates date of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)investment.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Payment and performance of the Obligations shall be secured by first priority perfected Liens on:
(ai) a perfected first-priority security interest all personal property of the Company;
(subject ii) until the Pekin Lenders and the ICP Lenders have received the Paydown Amount in full, all personal property of Pekin (the “Pekin Personal Property Collateral”);
(iii) all personal property of PEC pursuant to Permitted Liens entitled the PEC Pledge Agreement and the PEC Security Agreement (collectively, the assets referenced in clauses (i), (ii) and (iii) of this Section 6.3 are referred to priority under Applicable Lawherein as the “Personal Property Collateral”);
(iv) all real property and improvements of the Company;
(v) until the Pekin Lenders and the ICP Lenders have received the Paydown Amount in full, all real property and improvements of Pekin (the “Pekin Real Property Collateral” and together with the Pekin Personal Property Collateral, the “Pekin Collateral” and collectively, the assets referenced in clauses (iv) and (v) of this Section 6.3 are referred to herein as the “Real Property Collateral”). In each case, whether now owned or hereafter acquiredacquired (the Personal Property Collateral and the Real Property Collateral are collectively referred to as the “Collateral”), subject only to Permitted Liens or other exceptions approved in writing by Agent. Prior to or substantially contemporaneously with the date of this Agreement and at such other times as Agent may request (including each time the Company, Pekin or PEC acquires any real property or any personal property not already subject to the Liens required herein), the Company shall execute and deliver (or shall cause to be delivered) to Agent such security agreements, pledge agreements, assignments, mortgages, deeds of trust, and other documents and agreements requested by Agent for the purpose of creating, perfecting, and maintaining a perfected Lien on the Collateral, subject only to Permitted Liens or other exceptions approved in writing by Agent. The Company hereby authorizes Agent to file such Uniform Commercial Code financing statements to record such mortgages, deeds of trust, and other documents in the applicable real property records as Agent reasonably determines are necessary or advisable to perfect the security interests in and Liens on the Collateral. Payment and performance of the Obligations shall also be guaranteed by PEC pursuant to the terms PEC Guaranty. Upon receipt of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Paydown Amount, Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of immediately release its security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto)Pekin Collateral.
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, 1.5 New Section 7.04(b) (including any amendment thereof or consent thereunder6.12(e), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted to the Administrative Agent with respect to such assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Obligations As security for the payment of the Obligations, the Borrower shall cause to be secured by (a) granted to the Agent, for the ratable benefit of the Lenders, a first priority perfected first-priority Lien on and security interest (subject to Permitted Liens entitled to priority under Applicable Law) in all Collateralof the following, whether now owned or hereafter acquired, existing or acquired subject only to the Liens permitted to be incurred pursuant to Section 7.3 hereof: (i) all of the shares of capital stock (or other equity interests of each Subsidiary if such Subsidiary is not a corporation) of each Subsidiary of the Borrower now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Borrower Pledge Agreement and the Subsidiary Pledge Agreements; (ii) certain of the assets of the Borrower and all proceeds thereof, all as more specifically described in the Borrower Security Agreement; and (iii) certain of the assets of each Subsidiary now or hereafter directly or indirectly owned by the Borrower and all proceeds thereof, all as more specifically described in the Subsidiary Security Agreement. To the extent the Agent for the benefit of the Lenders does not have a first priority perfected security interest in any assets of the Borrower or any other Loan Party required to be pledged as described above which is of the type described in the Borrower Security Agreement, the Borrower Pledge Agreement, the Subsidiary Pledge Agreement or the Subsidiary Security Agreement, the Borrower will grant, and cause each other Loan Party to grant, to the Agent for itself and the benefit of the Lenders a first priority perfected security interest in such assets subject only to the Liens permitted pursuant to Section 7.3 hereof. In connection with any sales of assets permitted hereunder, the Agent will release and terminate the liens and security interests granted under the Security Documents with respect to such assets and no further consent of the Lenders will be required with respect to any such release.
(b) Concurrently with the consummation of any Permitted Acquisition or any other acquisition of any asset (whether by purchase, merger, contribution, license or otherwise) which is of the type described in the Borrower Security Agreement, the Subsidiary Security Agreement, the Borrower Pledge Agreement or the Subsidiary Pledge Agreement by the Borrower or any Subsidiary of the Borrower (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) (an "Acquiring Subsidiary") or the formation of any new Subsidiary (other than a Subsidiary which, after giving effect to any such acquisition, is an Immaterial Subsidiary, except as otherwise provided in Section 6.11 or any Security Document) of the Borrower or upon an Immaterial Subsidiary ceasing to qualify or be designated as an Immaterial Subsidiary (conversion from the status of an Immaterial Subsidiary to a Subsidiary which is not an Immaterial Subsidiary is hereinafter referred to as a "Conversion"), the Borrower shall
(i) in the case of a Permitted Acquisition of stock or other equity interest or any other acquisition of stock or other equity interest (whether by purchase, merger, contribution, license or otherwise) by the Borrower or any such Acquiring Subsidiary of the Borrower or the formation of such a new Subsidiary or a Conversion: (A) deliver or cause to be delivered to the Agent all of the certificates representing the capital stock (or other equity interest if such equity interests are represented by a certificate or certificates) of such new Subsidiary which is being acquired or formed or converted (or Investment if such Investment is not an Immaterial Investment), beneficially owned by the Borrower or such Acquiring Subsidiary, as additional collateral for the Obligations, to be held by the Agent in accordance with the terms of the Borrower Pledge Agreement or a Subsidiary Pledge Agreement, as the case may be; and (B) cause such Acquiring Subsidiary (which is not already a party thereto) or new Subsidiary which is being acquired or formed or converted to deliver to the Agent (1) duly executed counterpart signature pages to each of the Guaranty, and the Subsidiary Security Agreement Agreement, in the forms attached respectively thereto as Annex I, together with the authorization to the Agent and the Lenders to attach such signature pages to the Guaranty and the Subsidiary Security Agreement, respectively, the effect of which each Borrower is shall be that as of the date set forth on such signature pages such Acquiring Subsidiary or such new or converted Subsidiary, as the case may be, shall become a party to the extent perfected each such agreement and be bound by the filing of UCC financing statements; terms thereof and any revisions to the schedules to the Subsidiary Security Agreement necessary in connection therewith, (b2) a pledge of 100% of the if such new or converted Subsidiary owns any capital stock or other Equity Interests of equity interest or if such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) Acquiring Subsidiary is not already a party to the Administrative Agent on behalf of the Secured Parties pursuant to the a Subsidiary Pledge Agreement; and (c) , a pledge of Subsidiary Pledge Agreement duly executed by such new or converted Subsidiary or such Acquiring Subsidiary, as the capital stock case may be, or if such new or converted Subsidiary owns any copyrights, trademarks, patents or other Equity Interests of each Foreign Subsidiary intellectual property, such additional Security Documents as requested by the Agent, (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any 3) such first-tier Foreign Subsidiary of a Borrower Uniform Commercial Code financing statements as shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that perfect the Borrowers hereby agree, upon the request security interest of the Administrative Agent and the Required LendersLenders in the Collateral being pledged by such new Subsidiary pursuant to the Subsidiary Security Agreement, to deliver, as promptly as practicable, but in any event within ninety and (904) ten (10) days after request thereforprior written notice of any such Permitted Acquisition, other acquisition, formation or Conversion.
(ii) in the case of a Permitted Acquisition of assets or any other acquisition of assets (including equity interests of a Person other than a corporation) (whether by purchase, merger, contribution, license or other wise) by the Borrower or any such Acquiring Subsidiary which is of the type described in the Borrower Security Agreement or the Subsidiary Security Agreement or the formation of such a new Subsidiary or a Conversion into a Person which in either case is not a corporation, deliver or cause to be delivered by the Borrower or such other later time, if any, to which the Administrative Agent may agreeAcquiring Subsidiary acquiring such assets or forming such new Subsidiary, (iA) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with such Uniform Commercial Code financing statements as shall be required to perfect the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor security interest of the Parent to dispose Agent and the Lenders in the assets being so acquired, (B) if such assets include copyrights, trademarks, patents or other intellectual property, such additional Security Documents as requested by the Agent, (C) any additional instruments or documents evidencing the security interest of titled equipment) and, if the Agent reasonably required by the Administrative AgentAgent and (D) ten (10) days prior written notice of any such Permitted Acquisition, the Borrowers shall retain Corporation Service Company other acquisition, formation or Conversion; and
(or other similar company satisfactory to the Administrative Agentiii) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company in any case (or A) provide such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (documentation, including, without limitation, the delivery one or more opinions of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance counsel reasonably satisfactory to the Administrative Agent) , articles of incorporation, by-laws and resolutions, which in the reasonable opinion of the applicable lessor Agent is necessary or advisable in connection with such Permitted Acquisition or formation of such new Subsidiary or other party acquisition (whether by purchase, merger, contribution or other wise) or Conversion, (B) cause any newly formed or acquired Immaterial Subsidiary which is or is to such leasehold mortgage (andbecome a Subordinated Guarantor, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statementsa counterpart to the Guaranty, and similar documents (C) if, as a result of the Borrowers may reasonably request consummation of any transaction or transactions, there is a significant change in order to release such Person from its Obligations under the Loan Documents and to release information provided by the Liens granted to Borrower on Schedule 5.18, promptly provide the Administrative Agent with respect to such assets, Equity Interests or a new schedule which reflects the then current corporate structure of the Borrower and its Subsidiaries certified by an Authorized Officer of the Borrower, as applicable.
Appears in 1 contract
Collateral Security. (a) The Obligations Borrower's obligations under this Agreement and the Note shall be secured by (a) a perfected first-priority security interest (subject to Permitted Liens entitled to priority under Applicable Lawthe "Security Interest") in all Collateralassets of the Borrower pursuant to an amended and restated security agreement of even date herewith, whether now owned or hereafter acquired, in the form attached hereto as Exhibit B (the "Security Agreement"). The security interest granted to Lender pursuant to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower subordinated to (collectively, “Motor Vehicles”A) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney security interest in favor of First Union National Bank N.A. (the Parent to dispose of titled equipment"First Union Security Interest") and, if required as evidenced by the Administrative Agentloan or credit agreement in effect between First Union National Bank N.A. and the nStor Corporation, Inc. ("NCI") as of the date hereof and the UCC-1 Financing Statement relating thereto filed of record with the Secretary of State of the State of Florida as of the date hereof, (B) a security interest in all assets of the Borrower and NCI to be given hereafter in favor of Congress Financial Corporation (Florida), or a similar lender, bank or financial institution (the "Congress Security Interest"), to secure a revolving line of credit to NCI, and (C) the security interests granted under other "Senior Indebtedness" (as hereinafter defined) (the "Senior Indebtedness Security Interest") (the First Union Security Interest, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory Congress Security Interest and the Senior Indebtedness Security Interest are collectively referred to hereinafter as the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles"Permitted Liens"); and (ii) mortgages pari passu with respect (A) all security interests granted or granted hereafter to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if requiredH. I▇▇▇▇ ▇▇▇▇, and a certification (B) the security interests granted to other lenders as of the name and address of each real estate recording office where a mortgage on date hereof (the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the benefit of the Secured Parties, a perfected first-priority security interest in such assets, provided that to the extent that any lease of (or operating/management agreement with respect to) Real Property prohibits assignment of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the Borrowers "Pari Passu Liens"). The Borrower shall not be required to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be in form and substance reasonably satisfactory to the Administrative Agent) of the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the Parent, in the case of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided the Administrative Agent with such certifications or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all and cause to be executed and delivered such formsfurther instruments and documents, releasesincluding without limitation UCC-1 Financing Statements, discharges, assignments, termination statements, as shall be reasonably necessary and similar proper to effectuate the granting and perfection of the Security Interest. The Lender shall execute and deliver such further instruments and documents as shall be reasonably necessary and proper to reflect the Borrowers may reasonably request in order to release such Person from its Obligations under subordination of the Loan Documents and to release the Liens granted Security Interest to the Administrative Agent with respect Permitted Liens. For purposes of this Agreement, Senior Indebtedness shall mean all indebtedness, obligations and liabilities of Borrower to such assets, Equity Interests banks and other financial institutions now existing or Borrower, as applicablehereafter arising.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Nstor Technologies Inc)
Collateral Security. To secure the performance by Borrowers of their obligations hereunder, and under the Notes, the Guaranty and Security Instruments, whether now or hereafter incurred, matured or unmatured, direct or contingent, joint or several, or joint and several, including extensions, modifications, renewals and increases thereof, and substitutions therefore, Borrowers shall contemporaneously with or prior to the execution of this Agreement and the Notes, grant and assign to Agent for the ratable benefit of the Banks a first and prior Lien on (ai) The Obligations the Rigs, together with an assignment of the insurance covering such Rigs, the charter hire, drilling contract earnings and revenues of the Rigs, (ii) at least $19,600,000 in market value Treasury Bonds, (iii) 66% of the voting stock of all foreign Material Subsidiaries, (iv) 100% of the voting stock of all domestic Material Subsidiaries, and (v) the Subsidiary Notes. All agreements and obligations arising out of Rate Management Transactions between either Borrower and the Banks or their Affiliates shall be secured by (a) the Collateral and paid on a perfected first-priority security interest (subject to Permitted Liens entitled to priority pari passu basis with the indebtedness and obligations of such Borrower under Applicable Law) this Agreement and the other Loan Documents. The Rigs, Treasury Bonds, stock and Subsidiary Notes and other collateral in all Collateral, whether now owned which Borrowers have herewith granted or hereafter acquired, pursuant grants to the terms of the Security Agreement to which each Borrower is a party to the extent perfected by the filing of UCC financing statements; (b) a pledge of 100% of the capital stock or other Equity Interests of such Borrowers (other than the Parent) and of the Non-Borrower Subsidiaries (other than the Foreign Subsidiaries) to the Administrative Agent on behalf of the Secured Parties pursuant to the Pledge Agreement; and (c) a pledge of the capital stock or other Equity Interests of each Foreign Subsidiary (provided that not more than 65% of the total voting power of all outstanding capital stock or other Equity Interest of any such first-tier Foreign Subsidiary of a Borrower shall be required to be so pledged and no Equity Interests of any non-first-tier Foreign Subsidiary shall be provided to be so pledged); provided that the Borrowers hereby agree, upon the request of the Administrative Agent and the Required Lenders, to deliver, as promptly as practicable, but in any event within ninety (90) days after request therefor, or such other later time, if any, to which the Administrative Agent may agree, (i) certificates of titles for all or substantially all vehicles, trucks, trailers, tractors, automobiles and any other equipment covered by certificates of title owned by a Borrower (collectively, “Motor Vehicles”) with the Administrative Agent listed as lienholder therein (subject to a limited power of attorney in favor of the Parent to dispose of titled equipment) and, if required by the Administrative Agent, the Borrowers shall retain Corporation Service Company (or other similar company satisfactory to the Administrative Agent) pursuant to agreements reasonably satisfactory to the Administrative Agent pursuant to which Corporation Service Company (or such other company) will agree to act as agent for the Secured Parties with respect to the perfection of security interests in the Motor Vehicles; and (ii) mortgages with respect to Real Property and to take such other steps and make such other deliveries as may be reasonably requested by the Administrative Agent (including, without limitation, the delivery of legal opinions, Consulting Engineer’s reports, surveys, title insurance, environmental assessment reports, flood hazard certifications, evidence of flood insurance, if required, and a certification of the name and address of each real estate recording office where a mortgage on the real estate on which any Collateral consisting of fixtures may be located would be recorded) so as to provide the Administrative Agent, for the ratable benefit of the Secured Parties, Banks a perfected first-priority security interest in such assets, provided that first and prior Lien (to the extent that any lease satisfaction of (or operating/management agreement the Agent) in accordance with respect to) Real Property prohibits assignment this Section 6, as such properties and interests are from time to time constituted, are hereinafter collectively called the "Collateral." The granting and assigning of such lease (or operating/management agreement) without the consent of the lessor or another party thereunder, the security interests and Liens by Borrowers shall not be required pursuant to grant a mortgage on the leasehold interest under such lease, but in such event, the Borrowers agree to diligently and in good faith use its reasonable best efforts to obtain the consent (which consent shall be Security Instruments in form and substance reasonably satisfactory to the Administrative Agent) of . Borrowers will cause to be executed and delivered to the applicable lessor or other party to such leasehold mortgage (and, upon the receipt of such consent, the Borrowers shall promptly grant such leasehold mortgage and comply with the other provisions of this Section 10.15 with respect thereto).
(b) In the event any Borrower disposes of any assets or Equity Interests as permitted under, and in compliance with, Section 7.04(b) (including any amendment thereof or consent thereunder), or in the event that the Parent designates any Borrower as an Excluded Subsidiary or a Non-Borrower Subsidiary hereunder and no Default would result from such designation, and so long as such Borrower (or the ParentAgent, in the case future, additional Security Instruments if the Agent reasonably deems such are necessary to insure perfection or maintenance of designating a Borrower as an Excluded Subsidiary hereunder) shall have provided Banks' Liens in the Administrative Agent with such certifications Collateral or documents, if any, as the Administrative Agent shall reasonably request, the Administrative Agent will, at the Borrowers’ sole cost and expense, and without recourse to or warranty by the Administrative Agent, execute and deliver all such forms, releases, discharges, assignments, termination statements, and similar documents as the Borrowers may reasonably request in order to release such Person from its Obligations under the Loan Documents and to release the Liens granted any part thereof. In addition to the Administrative Agent with respect granting of the first and prior Liens referred to such above, Borrowers shall also grant to the Banks a negative pledge on all of their other assets, Equity Interests or Borrower, as applicable.
Appears in 1 contract