Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 2 contracts
Samples: Assignment and Assumption (Inergy L P), Assignment and Assumption (Inergy Holdings, L.P.)
Collateral. 12.1 Each of the Company and NTSI, as applicable, will direct all present and future Account Debtors of NTSI set forth on Schedule 6.17 hereof, and other persons obligated to make payments constituting Accounts of Assigned Contracts to make such payments directly to the lockbox maintained by the Company (the "Lockbox") with North Fork Bank pursuant to the terms of the Lockbox Agreement dated May 16, 2005 or such other financial institution accepted by the Purchaser in writing as may be selected by the Company (the "Lockbox Bank"). On or prior to the Closing Date, the Company and NTSI, as applicable, shall and shall cause the Lockbox Bank to enter into all such documentation acceptable to the Purchaser pursuant to which, among other things, the Lockbox Bank agrees to: (a) Subject sweep the Lockbox on a daily basis and deposit all checks received therein to an account designated by the Company in writing and (b) comply only with the instructions or other directions of the Purchaser concerning the Lockbox. All of the NTSI's invoices, account statements and other written or oral communications directing, instructing, demanding or requesting payment of any Account of any Assigned Contract shall conspicuously direct that all payments be made to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13Lockbox. Within thirty (30) days of closing, the Borrower willCompany shall provide copies of all invoices, account statements and will cause other written or oral communications directing, instructing, demanding or requesting payment of any Account relating to any Assigned Contract each other Credit Party toclearly directing Account Debtors to make all payments to the Lockbox. If, (i) cause notwithstanding the instructions to Account Debtors, the Company and or NTSI, as applicable receives any payments, the Company and or NTSI, as applicable, shall immediately remit such payments to the Lockbox in their original form with all necessary endorsements. Until so remitted, the Company and or NTSI, as applicable shall hold all such payments in trust for and as the property of the Purchaser and shall not commingle such payments with any of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower funds or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)property.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Nestor Inc), Securities Purchase Agreement (Nestor Inc)
Collateral. (a) Subject to the limitations on property or assets acquired Effective upon any Subsidiary becoming a Guarantor after the Amendment Effective Date set forth in Section 5.13Date, the Borrower will, and will shall cause each other Credit Party to, such Guarantor within fifteen Business Days after becoming a Guarantor (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree agree) to grant to the Collateral Agent for the benefit of the Secured Parties a first (subject to Permitted Liens) priority security interest in all assets (including real property and the Capital Stock of its Subsidiaries) of such Guarantor pursuant to documentation (including related certificates and opinions) reasonably acceptable to the Administrative Agent. The Borrower will, and will cause the Borrower and each of the Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral as the Administrative Agent may reasonably require. Notwithstanding any of the foregoing, (a) neither the Borrower nor any other Guarantor shall be obligated hereby to grant a security interest in any asset if the granting of such security interest would result in the exercise violation of its reasonable discretion any applicable law or regulation, (it being understood b) the Collateral shall not include a security interest in any asset if the granting of such security interest would be prohibited by enforceable anti-assignment provisions of contracts or applicable law (after giving effect to relevant provisions of the Uniform Commercial Code), (c) fee-owned real property having an individual fair market value of less than $2,500,000 or aggregate fair market value of less than $10,000,000 shall be excluded from the Collateral, (d) the Collateral shall not include cash and agreed cash equivalents, accounts receivable or Portfolio Securities, or deposit or security accounts (except to the extent that the failure foregoing are proceeds of Collateral; provided that in no event shall any control agreements be required) containing any of the foregoing, other assets requiring perfection through control agreements, letter-of-credit rights, leasehold real property, motor vehicles and other assets subject to deliver such Mortgages certificates of title (other than any corporate aircraft), interests in certain joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged without the consent of one or more third parties and obligations the interest on which is wholly exempt from the taxes imposed by subtitle A of the date ultimately required by Code, (e) the pledge of the Capital Stock of Foreign Subsidiaries shall be limited to 65% of the Capital Stock of material first-tier Foreign Subsidiaries, (f) the Administrative Agent shall constitute a Default under clause (d)(i) have the discretion to exclude from the Collateral immaterial assets, assets as to which it and the Borrower determine that the cost of Article VII hereof) with respect obtaining such security interest would outweigh the benefit to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided Lenders and other assets in which it may determine that the Borrower hereby agrees to use its best efforts to cause the delivery taking of such Mortgages as soon as reasonably practicable after the Effective Date; a security interest would not be advisable, and (4g) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages foreign law security or vehicle titles pledge agreements shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)required.
Appears in 2 contracts
Samples: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Collateral. (a) Subject to the limitations on property or assets acquired Effective upon any Subsidiary becoming a Guarantor after the Effective Date set forth in Section 5.13date hereof, the Borrower will, and will Holdco shall cause each other Credit Party to, such Guarantor within fifteen Business Days after becoming a Guarantor (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree agree) to grant to the Collateral Agent for the benefit of the Secured Parties a first (subject to Permitted Liens) priority security interest in all assets (including real property and the Capital Stock of its Subsidiaries) of such Guarantor pursuant to documentation (including related certificates and opinions) reasonably acceptable to the Administrative Agent. Holdco will, and will cause the Borrower and each of the Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral as the Administrative Agent may reasonably require. Notwithstanding any of the foregoing, (a) neither Holdco, the Borrower nor any other Guarantor shall be obligated hereby to grant a security interest in any asset if the granting of such security interest would result in the exercise violation of its reasonable discretion any applicable law or regulation, (it being understood b) the Collateral shall not include a security interest in any asset if the granting of such security interest would be prohibited by enforceable anti-assignment provisions of contracts or applicable law (after giving effect to relevant provisions of the Uniform Commercial Code), (c) fee-owned real property having an individual fair market value of less than $2,500,000 or aggregate fair market value of less than $10,000,000 shall be excluded from the Collateral, (d) the Collateral shall not include cash and agreed cash equivalents, accounts receivable or Portfolio Securities, or deposit or security accounts (except to the extent that the failure foregoing are proceeds of Collateral; provided, that in no event shall any control agreements be required) containing any of the foregoing, other assets requiring perfection through control agreements, letter-of-credit rights, leasehold real property, motor vehicles and other assets subject to deliver such Mortgages certificates of title (other than any corporate aircraft), interests in certain joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged without the consent of one or more third parties and obligations the interest on which is wholly exempt from the taxes imposed by subtitle A of the date ultimately required by Code, (e) the pledge of the Capital Stock of Foreign Subsidiaries shall be limited to 65% of the Capital Stock of material first-tier Foreign Subsidiaries, (f) the Administrative Agent shall constitute a Default under clause (d)(i) have the discretion to exclude from the Collateral immaterial assets, assets as to which it and the Borrower determine that the cost of Article VII hereof) with respect obtaining such security interest would outweigh the benefit to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided Lenders and other assets in which it may determine that the Borrower hereby agrees to use its best efforts to cause the delivery taking of such Mortgages as soon as reasonably practicable after the Effective Date; a security interest would not be advisable, and (4g) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages foreign law security or vehicle titles pledge agreements shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)required.
Appears in 2 contracts
Samples: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower willThe Company will cause, and will cause each other Credit Party toto cause, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) Property to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Obligations Parties to secure the Secured Obligations in accordance with the terms and conditions of the Intercreditor Agreement and the Collateral Documents, subject in all cases any case to Permitted LiensLiens permitted by Section 10.6 hereof (it being understood and agreed that (a) no control agreements will be required hereunder in respect of bank accounts, and (b) Mortgages and Mortgage Instruments will only be required hereunder in respect of Mortgaged Properties). Notwithstanding anything herein to the contrary, if any improvement on a Mortgaged Property is located in a Flood Hazard Area, no Mortgage will be executed or recorded with respect to such Mortgaged Property pursuant to this Agreement unless the holders of the Notes have received written notice of such Mortgage at least 30 days prior to such execution or recording and the Required Holders have confirmed that their flood insurance due diligence and flood insurance compliance has been completed in a manner satisfactory to the Required Holders (such confirmation not to be unreasonably withheld or delayed). Without limiting the generality of the foregoing, the Borrower Company: (i) will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) equity interests of each Pledge Subsidiary directly owned by the Borrower Company or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other security documents as the Collateral Agent shall reasonably request; and (ii) will, and will cause each Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property owned by the Company or such Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent. Notwithstanding the foregoing: (1) , no Pledge Agreement pledge agreement in respect of the Capital Stock equity interests of any Pledge a Foreign Subsidiary shall be required hereunder to the extent such pledge thereunder would be is prohibited by applicable law, law or counsel to the Administrative Agent or its counsel holders of the Notes reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations Parties pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)pledge agreements.
Appears in 2 contracts
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Intercreditor Agreement (Encore Capital Group Inc)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the The Borrower willwill cause, and will cause each other Credit Party toto cause, (i) cause all of its owned property Property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assetsother than Exempt Property) to be subject at all times to first prioritypriority (except in case of Liens permitted in Section 6.15.15 and cash deposited with General Electric Capital Corporation, or an agent or affiliate thereof, to secure Letter of Credit reimbursement obligations under the Existing Credit Agreement), perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases any case to Permitted LiensLiens permitted by Section 6.15 hereof. Without limiting the generality of the foregoing, the Borrower will (i) cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) equity interests of each Pledge Subsidiary Subsidiary) directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other security documents as the Administrative Agent shall reasonably request and (ii) will, and will cause each Guarantor to, deliver Mortgages and Mortgage Instruments with respect to the Mortgaged Properties owned by the Borrower or such Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: , (1) no Pledge Agreement pledge agreement in respect of the Capital Stock equity interests of any Pledge a Foreign Subsidiary shall be required hereunder to the extent such pledge thereunder would be is prohibited by applicable law, or the Administrative Agent law or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; pledge agreements and (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereundersuch Mortgages, Mortgage Instruments and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages pledge agreements are required to be delivered hereunder until December 31May 30, 2009 2004 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion after consultation with the Lenders (it being understood and agreed that the failure to deliver such Mortgages Mortgages, Mortgage Instruments and pledge agreements by the May 30, 2004 or such later date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereofSection 7.3) with respect to (a) the Fee Owned Real Property owned by the Credit Parties Mortgaged Properties on the Effective DateClosing Date in the case of Mortgages and Mortgage Instruments and (b) the pledge of the equity interests in each Foreign Subsidiary in the case of such pledge agreements; provided that the Borrower hereby agrees to use its best reasonable efforts to cause the delivery of such Mortgages Mortgages, Mortgage Instruments, and pledge agreements as soon as reasonably practicable after the Effective Closing Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 2 contracts
Samples: Credit Agreement (Headwaters Inc), Credit Agreement (Headwaters Inc)
Collateral. (a) Subject to NINTH.- For the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, purposes of securing due compliance of each and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor obligations of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with Borrower under the terms hereof, no later than fifteen days from and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoingafter execution hereof, the Borrower will cause form, on a separate document, a SALE AND PAYMENT TRUST whereby the Applicable Pledge Percentage Borrower will contribute such amount of CPO’s as it may be necessary to equal the amount of THREE HUNDRED AND FIFTY MILLION DOLLARS, LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA, to maintain a collateral ratio of one point four to one, in respect to outstanding balance of the issued Loan. Such Trust shall have the conditions which may be necessary for its operation and outstanding Capital Stock (other than Excluded Assets) implementation. If the value of each Pledge Subsidiary directly owned by CPO’s contributed into the Borrower trust should fall below FIFTEEN PERCENT or any other Credit Party to be subject at all times to a first prioritymore, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts contribute into the trust, additional CPO’s to cause maintain at all times the delivery above required coverage of such Mortgages as soon as reasonably practicable after one point four to one. The Borrower shall have five days to elect to create a deposit of money in the Effective Date; (4) no vehicle titles for the motor vehicles owned account designated to that end by the Credit Parties Lender, for an amount equal to such number CPO’s as required to maintain the referred coverage of one point four to one. Given the fact that the Trust is not created concurrently [with execution hereof] and titled until such time the Trust is formed, the Borrower hereby, to reflect secure compliance of Borrower’s obligations hereunder, creates a first order and priority pledge upon the Administrative Agent entirety of the shares of stock it holds in CONTROL ADMINISTRATIVE MEXICANO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE, and indirectly, through its subsidiary, CEMEX MEXICO, SOCIEDAD ANONIMA DE CAPITAL VARIABLE, upon the entirety of the shares of stock it holds in CAMCEM, SOCIEDAD ANONIMA DE CAPITAL VARIABLE. The pledge created herein shall remain effective for fifteen calendar days from and after execution hereof, provide that the Trust referred to in the preceding paragraph shall have been formed at Lender’s satisfaction. If the Trust cannot be formed for whatever reason, this Agreement shall terminate and foreclosure efforts as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Pledge created herein shall commence.
Appears in 2 contracts
Samples: www.sec.gov, Cemex Sab De Cv
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower willThe Company will cause, and will cause each other Credit Party toto cause, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) Property to be subject at all times to first priority, perfected Liens in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Obligations Parties to secure the Secured Obligations in accordance with the terms and conditions of the Intercreditor Agreement and the Collateral Documents, subject in all cases any case to Permitted LiensLiens permitted by Section 10.6 hereof (it being understood and agreed that (a) no control agreements will be required hereunder in respect of bank accounts, and (b) Mortgages and Mortgage Instruments will only be required hereunder in respect of Mortgaged Properties). Without limiting the generality of the foregoing, the Borrower Company: (i) will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) equity interests of each Pledge Subsidiary directly owned by the Borrower Company or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Collateral Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other security documents as the Collateral Agent shall reasonably request; and (ii) will, and will cause each Guarantor to, deliver Mortgages and Mortgage Instruments with respect to real property owned by the Company or such Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Collateral Agent. Notwithstanding the foregoing: (1) , no Pledge Agreement pledge agreement in respect of the Capital Stock equity interests of any Pledge a Foreign Subsidiary shall be required hereunder to the extent such pledge thereunder would be is prohibited by applicable law, law or counsel to the Administrative Agent or its counsel holders of the Notes reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations Parties pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)pledge agreements.
Appears in 2 contracts
Samples: Senior Secured Note Purchase Agreement (Encore Capital Group Inc), Senior Secured Note Purchase Agreement (Encore Capital Group Inc)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the The Borrower willwill cause, and will cause each other Credit Loan Party tothat is a Subsidiary Guarantor to cause, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the whether personal, tangible, intangible, or mixed), other than Excluded Assets) Property, to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations Parties to secure the Obligations Obligations, in accordance with the terms and conditions of the Collateral Documents, subject in all cases any case to Permitted LiensLiens permitted by Section 6.02; provided, that Liens upon any parcel of real property shall only be required to be granted when either the book value, or if the Borrower has a fair market appraisal of such parcel, the appraised value thereof equals or exceeds $10,000,000. Without limiting The Borrower shall and shall cause its Domestic Subsidiaries to execute or cause to be executed (subject to the generality grace periods provided in Section 5.09 for the joinder of Subsidiary Guarantors), Collateral Documents (including, upon the request of the foregoingAdministrative Agent, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assetsapplicable local law pledge documents) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure for the Obligations in accordance with the terms and conditions benefit of the Collateral Documents Secured Parties, with respect to all of the extentproperty of the Borrower or such Subsidiary Guarantor constituting or required to constitute Collateral; provided that no pledge of the Equity Interests of a Foreign Subsidiary shall be required hereunder if such Equity Interests constitute Excluded Property; provided, and within such time period as isfurther, reasonably that no local-law pledge documentation shall be required to be delivered unless requested by the Administrative Agent. Notwithstanding The Borrower further agrees to deliver or cause the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder delivery to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that of all such pledge would not provide material credit support for Collateral Documents, together with appropriate corporate resolutions and other documentation (including legal opinions, the benefit of stock certificates representing the Holders of Secured Obligations pursuant Equity Interests subject to legally validthe above-described pledge, binding stock powers with respect thereto executed in blank, and enforceable Pledge Agreements; (2) no Mortgages covering real property such other than Fee Owned Real Property documents as shall be required hereunderreasonably requested by the Administrative Agent) to grant and perfect such Lien, in each case in form and substance reasonably satisfactory to the Administrative Agent, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines in a manner that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided be reasonably satisfied that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as has a first priority perfected security interest in and pledge of the lienholder Collateral of the Borrower or such Subsidiary Guarantor and all rights, title, power and privileges related thereto, subject to any Liens permitted by Section 6.02 of the Credit Agreement; provided, that no such Lien (other than Permitted Priority Liens) shall be permitted to have priority over the Administrative Agent’s Liens on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Collateral.
Appears in 2 contracts
Samples: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co)
Collateral. The obligations of the Borrower in respect of the Facility and at the Borrower’s option, in respect of Permitted Interest Rate Xxxxxx (as defined below) shall be secured by, in each case, to the extent owned by the Borrower (a) Subject to a perfected first priority security interest in all of the limitations on Investments, including Eligible Assets and Temporary Investments owned by the Borrower, (b) a pledge by the Borrower of 100% of the equity interests of the Financing Subsidiaries owned by the Borrower, (c) the Borrower’s rights under Permitted Interest Rate Xxxxxx, (d) all other existing and future assets and property or assets acquired after of the Effective Date set forth in Section 5.13Borrower, including the Custodial Account and the Interest Reserve Account (as such terms are defined below) and (e) any and all proceeds of the foregoing (collectively, the Borrower will, and will cause each other Credit Party to“Collateral”). Notwithstanding the foregoing, (i) cause all if a Half Turn Election is in effect, in connection with the incurrence of its owned property permitted Third Party Debt by a Financing Subsidiary, Eligible Assets may be contributed to such Financing Subsidiary or may be acquired by such Financing Subsidiary and will not constitute or will cease to constitute, as the case may be, Collateral and will be available to secure such Third Party Debt and (subject ii) the Borrower may elect to secure Permitted Interest Rate Xxxxxx with cash collateral on customary terms, in which case such collateral will not constitute Collateral and will not be included in the calculation of the Asset Coverage Ratio (as defined below) or the Leverage Ratio (as defined below). CUSTODIAL ACCOUNT Eligible Assets and Temporary Investments held by the Borrower will be maintained in a Custodial Account (the “Custodial Account”). All Investment Proceeds in respect of Investments held by the Borrower (but not the Investment Proceeds from Investments held by any Financing Subsidiary unless and until such proceeds are distributed to the exceptions contained herein Borrower by such Financing Subsidiary) received during each Collection Period shall be deposited into the Custodial Account for allocation and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations distribution in accordance with the terms and conditions Priority of Payments on the Collateral Documentsrelated Loan Payment Date, subject except in all cases to Permitted Liens. Without limiting the generality instance of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned a withdrawal by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations General Partner in accordance with the terms and conditions of specified therein. Amounts on deposit in the Collateral Documents to the extent, and within such time period Custodial Account may be invested in Temporary Investments as is, reasonably required determined by the Administrative AgentGeneral Partner. Notwithstanding the foregoing: INTEREST RESERVE ACCOUNT The Borrower shall establish an interest reserve account (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).the
Appears in 2 contracts
Samples: www.treasury.gov, fraser.stlouisfed.org
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, The Obligations shall be secured by (i) cause all of its owned property (subject to the exceptions contained herein a perfected lien or security title and in any Collateral Document and excluding the Excluded Assets) security interest to be subject at all times to first priority, perfected Liens in favor of the Administrative held by Agent for the benefit of Lenders in the Holders Mortgaged Properties and certain personal property of Secured Obligations Borrower related to secure the Obligations in accordance with Mortgaged Properties, pursuant to the terms and conditions of the Collateral DocumentsMortgage, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assetsii) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien security interest in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of Lenders in the Holders personal property assets of Secured Obligations Borrower pursuant to legally validthe Security Agreement, binding and enforceable Pledge Agreements; (2iii) no Mortgages covering real property other than Fee Owned Real Property shall a perfected security interest to be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative held by Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of Lenders in the Holders of Secured Obligations Ultra Lease and the Ultra Lease Guaranty pursuant to legally validthe Assignment of Lease and Guaranty, binding in certain contracts of Borrower pursuant to the Assignment of Contracts, and enforceable Mortgages; in the Purchase Agreement and the Purchase Agreement Guaranty pursuant to the Collateral Assignment of Purchase Agreement, (3iv) no Mortgages are required a perfected security interest to be delivered hereunder until December 31held by Agent for the benefit of Lenders in the Pledged Deposit Accounts and all monies, 2009 or instruments and investments from time to time held therein, (v) a perfected pledge of and security interest in all issued and outstanding Equity Interests held by CORR in Pinedale GP pursuant to the Pledge and Security Agreement, and (vi) such later date additional collateral, if any, as the Administrative Agent Borrower may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative grant to Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by benefit of Lenders from time to time may accept as security for the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages Obligations. All such liens or vehicle security titles shall be required hereunder prior and superior in right to any other Person except Permitted Liens having priority by operation of law. Borrower agrees that all hereafter acquired assets that are added to and become part of the LGS Assets shall be included in the Mortgaged Properties and/or other portions of the Collateral. Borrower shall execute such amendments to the extent Security Documents and/or additional Security Documents as Agent may require in order to add such additional assets to the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Collateral.
Appears in 2 contracts
Samples: Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Term Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Collateral. (a) Subject to the limitations The Obligations shall be secured by valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each Domestic Subsidiary in all personal property, fixtures, and will cause each other Credit Party toreal estate, whether now owned or hereafter acquired or arising, and all proceeds thereof; provided, however, that: (i) (A) until a Default or Event of Default has occurred and is continuing and thereafter until notice otherwise by the Bank, Liens on local xxxxx cash accounts maintained by the Borrower and the Guarantors in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected shall not exceed $100,000 in the aggregate and (B) Liens on payroll accounts maintained by the Borrower and the Guarantors need not be perfected provided the applicable deposit account is a zero balance account and the total amount on deposit at any time does not exceed the current amount of their payroll obligations; (ii) until a Default or Event of Default has occurred and is continuing and thereafter until notice otherwise by the Bank, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the total value of such property at any one time not so perfected shall not exceed $100,000 individually or $500,000 in the aggregate; (iii) Liens on the equity interests of a Foreign Subsidiary which, if granted, would cause all an increase in the Borrower’s federal income tax liability shall be limited to 65% of its owned the total outstanding equity interests of such Foreign Subsidiary; and (iv) unless otherwise required by the Bank during the existence of any Event of Default, Liens on Commercial Tort Claims need not be perfected where the total value of such property at any one time not so perfected shall not exceed $100,000 individually or $250,000 in the aggregate. The Borrower acknowledges and agrees that the Liens on the Collateral shall be valid and perfected first priority Liens (subject to Permitted Liens), in each case pursuant to one or more Collateral Documents in form and substance reasonably satisfactory to the exceptions contained herein and in any Bank. The Obligations shall further be secured by the Cash Collateral Document and excluding for the Excluded Assets) period beginning on or prior to be subject at all times to first priority, perfected Liens in favor the date of the Administrative Agent for the benefit initial extension of the Holders of Secured Obligations to secure the Obligations in accordance with the terms credit hereunder and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties ending on the Effective Cash Collateral Release Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 2 contracts
Samples: Credit Agreement (Accretive Health, Inc.), Credit Agreement (Accretive Health, Inc.)
Collateral. (a) Subject All assets of the Corporation and its operating subsidiaries, except for items related to the limitations on property Accounts Receivables of the Corporation, until the Debenture is either converted to Common Shares or assets acquired after repaid in full. Redemption: After the Effective Date set forth in Section 5.13Minimum Term, the Borrower will, and will cause each other Credit Party to, (i) cause all Corporation shall retain the right to convert the Debentures into Common Shares at the Conversion Price at any time so long as Corporation’s Common Shares have traded at a minimum volume weighted average price of its owned property $3.00/share for 20 consecutive trading days (subject to In Kind Limitations, as defined herein). Such right must be exercised by the exceptions contained herein Corporation within 5 days of the 20 trading day period. In the event the Corporation exercises this right, all Common Shares shall be given Piggyback Registration rights as defined herein. The Corporation shall also retain the option to redeem the Debentures at a redemption price equal to 115% of their Par value, plus any accrued and unpaid interest, payable in cash at any Collateral Document time after the Minimum Term so long as Corporation’s Common Shares have traded at a minimum volume weighted average price of $3.00/share for 20 consecutive trading days (subject to In Kind Limitations, as defined herein). If the Corporation chooses to redeem the Debentures equal to 115% of their Par value, the Corporation must give written notice to the holders of the Debentures and excluding allow the Excluded Assetsholders the right to convert the Debentures into the Corporation's Common Shares at the Conversion Price within ten days of being notified of Corporation’s intent to redeem. In Kind Limitations: In order for the Corporation to maintain its right to pay Coupon payments, and/or Redemption proceeds that are payable with the Corporation’s Common Shares, the Corporation must be publicly listed and have freely tradable Common Shares. For clarity, the holder of the Debentures will still maintain the right to convert Debentures into Common Shares regardless if the Corporation’s Common Shares are publicly trading after the Minimum Term. Change of Control: In the event of the acquisition of voting control or direction over 50% or more of Corporation’s Common Shares before the Minimum Term, each holder of Debentures will have the right to require the Corporation (including any successor entity to the Corporation) to be subject at all times to first prioritymake an offer, perfected Liens in favor within 20 days following the consummation of the Administrative Agent change of control to purchase for the benefit cash, such holder’s outstanding Debentures then outstanding at a price equal to 110.0% of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions principal amount thereof plus any accrued interest. Anti-Dilution: Proportional adjustments of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents conversion rights attached to the extentDebentures will be made for stock splits, stock dividends, recapitalizations and within such time period as is, reasonably required by the Administrative Agentlike. Notwithstanding the foregoing: (1) , for greater certainty, no Pledge Agreement in respect anti-dilution adjustment would be made on account of any new issuance of securities of the Capital Stock Corporation including (i) upon conversion of the Debentures issued as part of this Offering, or (ii) any Pledge Subsidiary shall be required hereunder issuance of stock options pursuant to the extent Corporation’s approved stock option plan, so long as the "option pool" available for issuance pursuant to such pledge thereunder would be prohibited by applicable lawstock option plan does not exceed ten percent (10%) of the Common Shares, calculated on a fully-diluted basis as of the Closing Date, or (iii) any issuance of securities issued in an additional financing, however subject to applicable anti-dilution laws in Canada and the Administrative Agent United States, or (iv) securities issued in connection with mergers or acquisitions. Liens & Indebtedness: The Corporation will repay all outstanding indebtedness to its counsel reasonably determines that such pledge would lenders, if any, out of the proceeds of the Debenture funding, and remove all registrations, liens or other charges against the Corporation at closing. Registration Rights: Holders will have full rights to Piggyback Registration after the Minimum Term is met, subject to customary underwriter's cutbacks, as may be required. If at any time the Corporation proposes to file a Registration Statement after the Minimum Term is met, whether or not provide material credit support for sale for the benefit Corporation’s own account, on a form and in a manner that would permit registration of the Holders of Secured Obligations pursuant to legally validRegistrable Securities, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property Corporation shall be required hereunder, and no Mortgages shall be required hereunder give to the extent Agent and the holders of Debentures, written notice of such Mortgages are not readily obtainable under relevant applicable law or if proposed filing at least ten (10) days before the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant anticipated filing. The notice referred to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise preceding sentence shall offer Holder the opportunity to register such amount of its reasonable discretion Registrable Securities as Holder may request (it being understood and agreed that the failure a "Piggyback Registration"), subject to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages customary underwriter's cutbacks, as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to may be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).required..
Appears in 2 contracts
Samples: Red Mile Entertainment Inc, Red Mile Entertainment Inc
Collateral. The Borrower will (a) Subject warrant and defend the ---------- right, title and interest of the Lender and the Security Agent in and to the limitations on property Collateral against the claims and demands of all persons whomsoever; (b) service, or assets acquired after cause to be serviced, all Mortgage Loans in accordance with the Effective Date set forth requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in Section 5.13accordance with applicable governmental requirements and the requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and mortgage loans backing Mortgage-backed Securities in trust, without commingling the Borrower willsame with non-custodial funds, and will cause each other Credit Party to, (i) cause all of its owned property (subject to apply the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent same for the benefit of the Holders of Secured Obligations to secure the Obligations purposes for which such funds were collected; (d) comply in accordance all respects with the terms and conditions of the Collateral Documentsall Master Commitments and Purchase Commitments, subject in and all cases to Permitted Liens. Without limiting the generality of the foregoingextensions, the Borrower will renewals and modifications or substitutions thereof or thereto, and deliver or cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents delivered to the extent, applicable Investor the Mortgage Loans and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall Mortgage-backed Securities to be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would sold under each Purchase Commitment not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other later than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; three (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect Business Days prior to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholderexpiration thereof; and (5e) no Mortgages or vehicle titles maintain, and, upon request, shall be required hereunder make available to the extent Lender, the Borrower is Agent or the Security Agent the originals, or copies in compliance with any case where the original has been delivered to the Security Agent or to an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, Master Commitments, Hedging Contracts and Vehicle Title Requirement)all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other information and data relating to the Collateral.
Appears in 2 contracts
Samples: Warehouse Credit Agreement (E Loan Inc), Warehouse Credit Agreement (E Loan Inc)
Collateral. The Borrower will (a) Subject warrant and defend the right, title and interest of the Lender and the Security Agent in and to the limitations on property Collateral against the claims and demands of all persons whomsoever; (b) service, or assets acquired after cause to be serviced, all Mortgage Loans in accordance with the Effective Date set forth requirements of the issuers of Master Commitments and Purchase Commitments covering the same and all applicable FHA and VA requirements (including without limitation taking all actions necessary to enforce the obligations of the obligors under such Mortgage Loans) and service, or cause to be serviced, all Mortgage Loans backing Mortgage-backed Securities in Section 5.13accordance with applicable governmental requirements and the requirements of issuers of Purchase Commitments covering the same; (c) hold all escrow funds collected in respect of Mortgage Loans and mortgage loans backing Mortgage-backed Securities in trust, without commingling the Borrower willsame with noncustodial funds, and will cause each other Credit Party to, (i) cause all of its owned property (subject to apply the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent same for the benefit of the Holders of Secured Obligations to secure the Obligations purposes for which such funds were collected; (d) comply in accordance all respects with the terms and conditions of the Collateral Documentsall Master Commitments and Purchase Commitments, subject in and all cases to Permitted Liens. Without limiting the generality of the foregoingextensions, the Borrower will renewals and modifications or substitutions thereof or thereto, and deliver or cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents delivered to the extent, applicable Investor the Mortgage Loans and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall Mortgagebacked Securities to be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would sold under each Purchase Commitment not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other later than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; three (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect Business Days prior to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholderexpiration thereof; and (5e) no Mortgages or vehicle titles maintain, and, upon request, shall be required hereunder make available to the extent Lender, the Borrower is Agent or the Security Agent the originals, or copies in compliance with any case where the original has been delivered to the Security Agent or to an Investor, of its Mortgage Notes, Mortgages, Purchase Commitments, Master Commitments, Hedging Contracts and Vehicle Title Requirement)all related Mortgage Loan documents and instruments, and all files, surveys, certificates, correspondence, appraisals, computer programs, tapes, discs, cards, accounting records and other information and data relating to the Collateral.
Appears in 2 contracts
Samples: Warehouse Credit Agreement (Mortgage Com Inc), Warehouse Credit Agreement (Mortgage Com Inc)
Collateral. Borrower has good title to, rights in, and the power to transfer each item of the Collateral upon which it purports to xxxxx x Xxxx hereunder, free and clear of any and all Liens except Permitted Liens. Borrower has no Collateral Accounts at or with any bank or financial institution other than Bank or Bank’s Affiliates except for the Collateral Accounts described in the Perfection Certificate delivered to Bank in connection herewith and which Borrower has taken such actions as are necessary to give Bank a perfected security interest therein, pursuant to the terms of Section 6.6(b) to the extent required under Section 6.6(b) hereof. The Accounts are bona fide, existing obligations of the Account Debtors. The Collateral is not in the possession of any third party bailee (such as a warehouse) except as otherwise provided in the Perfection Certificate, locations disclosed to Bank pursuant to Section 7.2, and locations of Experimental Compounds in the ordinary course of business in connection with clinical trials. None of the components of the Collateral shall be maintained at locations other than: (i) locations as provided in the Perfection Certificate, (ii) locations as permitted pursuant to Section 7.2, (iii) locations of mobile equipment, including phones, tablets and computers with employees and consultants in the ordinary course of business, (iv) locations where Collateral may be temporarily located for sales, testing or demonstration purposes in the ordinary course of business, (v) locations where biopharmaceutical compounds and therapeutic materials are located in the ordinary course of business in connection with clinical trials, and (vi) other locations where not more than Fifty Thousand Dollars ($50,000.00) of Collateral in the aggregate may be located at any time. All Inventory is in all material respects of good and marketable quality, free from material defects, except for Inventory for which adequate reserves have been made in accordance with GAAP. The foregoing representation shall not apply to Inventory consisting Experimental Compounds. Borrower is the sole owner of the Intellectual Property which it owns or purports to own except for (a) Subject non-exclusive licenses granted to its third parties in the ordinary course of business, (b) over-the-counter software and software that is commercially available to the limitations public, (c) licenses that are disclosed in writing to Bank pursuant to Section 6.7(b), (d) material Intellectual Property licensed to Borrower and noted on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower willPerfection Certificate, and will cause (e) immaterial Intellectual Property licensed to Borrower in the ordinary course of business. To the best of Borrower’s knowledge, each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock Patent (other than Excluded Assetspatent applications) of each Pledge Subsidiary directly owned by the Borrower which it owns or any other Credit Party purports to be subject at all times own and which is material to a first priorityBorrower’s business is valid and enforceable, perfected Lien in favor and no part of the Administrative Agent Intellectual Property which Borrower owns or purports to secure own and which is material to Borrower’s business has been judged invalid or unenforceable, in whole or in part. To the Obligations in accordance with the terms and conditions best of Borrower’s knowledge, no claim has been made that any part of the Collateral Documents to Intellectual Property violates the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock rights of any Pledge Subsidiary shall be required hereunder third party except to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge claim would not provide reasonably be expected to have a material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date adverse effect on Borrower’s business. Except as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties noted on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Perfection Certificate, Borrower is in compliance with the Mortgage and Vehicle Title Requirement)not a party to, nor is it bound by, any Restricted License.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Axsome Therapeutics, Inc.)
Collateral. Payment of the Obligations will be secured by (ai) Subject to a first perfected security interest in 100% of the limitations on property or assets acquired after Capital Stock of the Effective Date set forth Borrower and each of the Subsidiaries of the Parent and the Borrower, except Excluded Stock, (ii) Unlimited Guaranties of the Obligations by each Guarantor, (iii) a first perfected security interest (except for Permitted Liens) in Section 5.13accounts, inventory, non-fixture equipment of the Borrower, the Parent and each of the Restricted Subsidiaries, inter-company loans among the Parent, the Borrower, and the Subsidiaries (except loans between Unrestricted Subsidiaries), the Borrower Deposit Account and the Parent Deposit Account, but excluding (A) all tangible and intangible assets of Mutual Signal and the Subsidiaries of Mutual Signal, (B) fiber and other related assets subject to an IRU, (C) microwave assets of the Parent, the Borrower and the Restricted Subsidiaries, (D) intellectual property of the Parent, the Borrower and the Restricted Subsidiaries, (E) motor vehicles, and (F) assets subject to Liens permitted under Section 8.03(b) hereof, and (iv) certain real estate sites and contract rights of the Parent, the Borrower and the Restricted Subsidiaries (except Mutual Signal and its Subsidiaries) (collectively, together with all other Properties or assets of the Parent, the Borrower, Subsidiaries and other Persons securing the Obligations from time to time, the "Collateral"). The Borrower agrees that it will, and will cause each other Credit Party tothe Parent and the Restricted Subsidiaries to execute and deliver, (i) or cause all of its owned property to be executed and delivered, such documents as the Administrative Agent may from time to time reasonably request to create and perfect a first Lien (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded AssetsPermitted Liens) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations Administrative Agent and the Lenders in the Collateral, subject to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII Section 6.18 hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 2 contracts
Samples: Credit Agreement (Ixc Communications Inc), Credit Agreement (Ixc Communications Inc)
Collateral. (a) Subject The Obligations shall be secured by a perfected second priority security interest in the Collateral, subject only to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject first priority Lien granted pursuant to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent Security Agreement for the benefit of the Holders First Priority Secured Parties. The Borrower shall be entitled to withdraw Collateral in inverse order of Secured Obligations the ranking of such Collateral on the Pledged Collateral List (it being understood that any asset so withdrawn shall be automatically included in the Listed Eligible Assets as the highest ranked asset (and the list shall be adjusted accordingly)) so long as, both immediately before and after giving effect to secure such withdrawal, (i) no Material Default or Event of Default shall have occurred and be continuing (or shall result therefrom) and (ii) except for any such withdrawal which the Obligations Borrower reasonably determines is necessary for compliance with any covenant applicable under the terms of any Indebtedness of the Borrower as in accordance effect on the Closing Date relating to the maintenance of “Total Unencumbered Assets” (or any similar concept), the Fixed Charge Coverage Ratio at the time of such withdrawal is at least 1.25 to 1.00. Notwithstanding any other provisions in this Section 2.23, Non-Performing Loan Assets and Other Real Estate Owned Assets that are disregarded in calculating the aggregate Borrowing Base Value as provided in the definition of “Borrowing Base Value” may, so long as no Material Default or Event of Default shall have occurred and be continuing (or shall result therefrom), be withdrawn, at the option of the Borrower, to the extent of any amount so disregarded; provided that at the time of such withdrawal of any such assets, the Joint Lead Arrangers shall have the right, but not the obligation, to rank such assets as Listed Eligible Assets. Notwithstanding any other provisions in this Section 2.23, (x) the Borrower shall be entitled to withdraw Collateral in connection with payment or prepayment of such Collateral and (y) the Borrower shall be permitted to withdraw such Collateral in connection with sales to third parties or a monetization (that is not a payment or prepayment) (any such monetization or sale, a “Third Party Sale”) provided that in connection with any such Third Party Sale and after giving effect to such Third Party Sale and the prior addition (a “Collateral Addition”) of any replacement Collateral (which replacement Collateral shall comprise the highest ranked Listed Eligible Assets immediately prior to such replacement and the lowest ranked Collateral on the Pledged Collateral List immediately following such replacement), either (I) no Material Default or Event of Default shall have occurred and be continuing or (II) a Material Default or Event of Default shall have occurred and be continuing, but such Third Party Sale is consummated pursuant to a binding commitment entered into at a time that no Material Default or Event of Default had occurred and was continuing or would have resulted therefrom (it being understood that the proceeds of any such transaction described in clause (x) or (y) above shall be paid into the accounts established pursuant to Section 5.8). At such time as any Listed Eligible Assets are required to be pledged as Collateral in order to comply with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoinghereof, the Borrower will shall (i) cause the Applicable Pledge Percentage a sufficient amount of the issued highest ranked Listed Eligible Assets to be transferred to a Collateral SPV and outstanding Capital Stock (other than Excluded Assetsii) of each Pledge Subsidiary directly owned by the Borrower or take any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period actions as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel the Collateral Trustee may reasonably determines that such pledge would not provide material credit support request for the benefit purposes of fully perfecting or renewing the rights and security interests of the Holders Collateral Trustee, on behalf of Secured Obligations the Banks, with respect to the Collateral. In addition to Collateral withdrawals otherwise permitted pursuant to legally validthis Agreement or any other Loan Document, binding promissory notes and enforceable Pledge Agreements; related transfer documents, if any, constituting part of any Collateral (2and any related collateral) no Mortgages covering real property other than Fee Owned Real Property if requested by the Borrower at any time prior to the commencement of a Foreclosure (as defined in the Collateral Trust Agreement) in respect thereof, shall be required hereunder, and no Mortgages shall be required hereunder released by the Collateral Trustee to the extent such Mortgages are not readily obtainable under relevant custody of the Borrower, the applicable law or if the Administrative Agent Grantor or its counsel reasonably determines that such Mortgage would not provide material credit support agents in escrow pending any enforcement action, exercise of rights or other customary actions in lieu of enforcement or for the benefit purpose of the Holders correction of Secured Obligations pursuant to legally validdefects, binding if any, in each case in respect of any such promissory notes and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being related collateral. It is understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect any Collateral released pursuant to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees foregoing sentence shall remain Collateral except in connection with a withdrawal otherwise permitted pursuant to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages this Agreement or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)any other Loan Document.
Appears in 2 contracts
Samples: Second Priority Credit Agreement (Istar Financial Inc), Priority Credit Agreement (Istar Financial Inc)
Collateral. 1.5 priority lien (a) Subject junior only to the limitations liens securing the Borrower’s Fifth Amended and Restated Credit Agreement, dated as of November 8, 2013 (the “RBL”), by and among the Borrower, Toronto Dominion (Texas) LLC, as administrative agent (the “RBL Agent”), Xxxxx Fargo Bank, N.A., as syndication agent, Natixis, The Bank of Nova Scotia and Fifth Third Bank, as co-documentation agents and the various lenders and other parties thereto and other customary permitted liens which are senior in priority to the lien securing the RBL and permitted by the New Term Loan) on property or all assets acquired after of the Effective Date set forth in Section 5.13Obligors that secure the RBL. At closing, the Administrative Agent and the RBL Agent will enter into an intercreditor agreement reasonably satisfactory to the Initial Lenders and the Borrower will(the “Senior Lien ICA”). Pursuant to the Senior Lien ICA, and will cause each other Credit Party tothe RBL Agent shall, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding terms of the Excluded Assets) to be subject at all times to first prioritySenior Lien ICA, perfected Liens in favor of represent the Administrative Agent for as the benefit “Priority Lien Agent” under the Intercreditor Agreement, dated as of May 11, 2015 between the Holders RBL Agent, as the original priority lien agent, and Xxxxxx Xxxxxxx Senior Funding, Inc., as the original second lien collateral trustee (the “Existing ICA”) or the Administrative Agent shall join the Existing ICA as an additional “Priority Lien Agent”, as [Lender] and the RBL Agent shall reasonably determine. For the avoidance of Secured Obligations to secure doubt, the Obligations collateral coverage required under the New Term Loan shall be the same as the collateral coverage required by the RBL as in effect on the Closing Date; provided that any modifications of such collateral package after the Closing Date other than in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting Senior Lien ICA shall require the generality consent of holders of more than 50% of the foregoing, the Borrower will cause the Applicable Pledge Percentage outstanding principal amount of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priorityNew Term Loans. Scheduled Maturity Date: November 15, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date2019; provided that if the Borrower hereby agrees 8.50% Senior Notes due 2019 (the “Senior Notes”) issued under the Indenture, dated as of June 10, 2011 (the “Indenture”), by and among the Borrower, the subsidiary guarantors identified therein and Wilmington Trust, National Association (as successor trustee to use its best efforts Xxxxx Fargo Bank, National Association) are not refinanced in whole prior to cause February 28, 2019, with indebtedness maturing after November 15, 2019, the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Scheduled Maturity Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)February 28, 2019.
Appears in 1 contract
Samples: Support Agreement (W&t Offshore Inc)
Collateral. To secure the full and complete payment and performance of the Obligations (or, with respect to any Lien granted by any Subsidiary of the Borrower in accordance with CLAUSE (B) succeeding, to secure the full and complete payment and performance of all indebtedness, 10 liabilities and obligations of each Subsidiary Guarantor under its Guarantee of the Obligations), (a) Subject the Borrower will, and will cause each of the Subsidiary Pledgors to, grant to the limitations Agent for the benefit of the Agent and the Lenders a perfected, first priority Lien on property all of its right, title and interest in and to all Capital Stock of the Subsidiaries of the Borrower that are corporations (except for Excluded Subsidiaries) owned by the Borrower or assets acquired after any Subsidiary (except for Excluded Subsidiaries) of the Effective Date set forth in Section 5.13Borrower, whether now owned or hereafter acquired, pursuant to the Security Documents and (b) subject to the succeeding provisions of this SECTION 5.1, the Borrower will, and will cause each other Credit Party of its Subsidiaries to, at any time and from time to time on or after April 14, 1997, and promptly upon (iand, in any event unless the Agent and the Required Lenders otherwise agree, within ten (10) cause all Business Days after) any written request of its owned property (subject the Agent or the Required Lenders delivered to the exceptions contained herein and in any Collateral Document and excluding Borrower, grant to the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations Agent and the Lenders a perfected, first priority Lien (subject only to secure the Obligations Permitted Liens, if any, which are, in accordance with the terms this Agreement, expressly permitted to have priority over such Liens) on all of its right, title and conditions interest in and to any one or more of the Collateral Documentsreal Properties (or interests therein) and tangible personal Properties located thereon or used in connection therewith, subject in all cases to Permitted Liens. Without limiting the generality whether now owned or hereafter acquired, of the foregoingBorrower and/or its Subsidiaries as may be so requested and selected by the Agent and the Documentation Agent, which Liens shall be granted pursuant to and evidenced and accompanied by such agreements, documents or instruments consistent with this Agreement as the Agent and the Documentation Agent or the Required Lenders may reasonably request. In connection with the execution of any agreement, document or instrument referred to in CLAUSE (B) of the immediately succeeding sentence which creates or evidences a Lien on any real Property or any interest therein, the Borrower will, or will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge its appropriate Subsidiary directly owned by the Borrower to, as applicable, deliver or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required cause to be delivered hereunder until December 31, 2009 or such later date as to the Administrative Agent each of the following which may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages be requested by the date ultimately required by Agent or the Administrative Documentation Agent shall constitute a Default under clause (d)(i) at any time or from time to time, each of Article VII hereof) with respect which will be in form and substance reasonably satisfactory to the Fee Owned Real Property owned by Agent and the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery Documentation Agent and all of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles which shall be required hereunder delivered to the extent Agent promptly upon (and, in any event, unless the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).Agent otherwise agrees, within sixty (60) days after) such request:
Appears in 1 contract
Collateral. (a) Subject to the limitations The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each Guarantor in all of their accounts, chattel paper, instruments, documents, general intangibles, letter-of-credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, commercial tort claims, real estate and certain other Property, whether now owned or hereafter acquired or arising, and will cause each other Credit Party toall proceeds thereof; provided, however, that: (i) cause all unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Default or Event of Default, (x) Liens on demand deposit accounts other than payroll accounts maintained by the Borrower and the Guarantors in proximity to their operations need not be perfected, provided that the amount on deposit in any such individual account for any period in excess of five (5) consecutive calendar days not so perfected shall not exceed $1,500,000 (or such other amount as is determined by the Administrative Agent in its owned property reasonable credit judgment), (y) Liens on payroll accounts maintained by the Borrower and the Guarantors need not be perfected provided the total amount on deposit at any time does not materially exceed the current amount of their payroll obligations and (z) Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the exceptions contained herein total value of such property at any one time not so perfected shall not exceed $150,000 in the aggregate, (ii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens on the Voting Stock of a Foreign Subsidiary which, if granted, would cause an adverse effect on the Borrower’s federal income tax liability shall be limited to 66% of the total outstanding Voting Stock of such Foreign Subsidiary, and in (iii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens need not be granted on the assets of a Foreign Subsidiary which, if granted, would cause an adverse effect on the Borrower’s federal income tax liability. The Borrower acknowledges and agrees that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, subject in all cases the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingpreceding sentence and to Liens permitted by Section 8.8 hereof, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Collateral. No later than 30 days after the Closing Date, the Company (i) shall grant and cause each of its Subsidiaries to grant to the Agent, for the prorata benefit of the Banks, as security for the Obligations, and subject to Permitted Liens, a first lien upon and security interest in all of the assets of every description (whether now or hereafter existing or acquired) of the Company and its Subsidiaries, and (ii) at its expense, execute and deliver and cause to be executed and delivered to the Agent such security agreements, pledge agreements, UCC financing statements, stock or bond powers, waivers and consents, opinions of counsel and other documents as the Agent or the Required Banks shall request (collectively, "Collateral Documents"), and take such further action as may be required under applicable law, or as the Agent or the Required Banks may request, in order to grant, preserve, protect and perfect the validity and first priority of the security interests created pursuant to such Collateral Documents; it being understood, that the grant of such lien and security interest shall only be effective on the occurrence of the earlier of (a) Subject Default or Event of Default or (b) Trigger Event (the date of such effectiveness is hereinafter referred to as the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent"Attachment Date"). Notwithstanding the foregoing: , (1A) the Company shall not be required to grant or cause any of its Subsidiaries to grant to the Agent a lien upon or security interest in real property (except, however, insofar as personal property constitutes fixtures), (B) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary UCC financing statements, security agreements or other Collateral Documents shall be required hereunder filed or made of record before the Attachment Date (but shall be filed and made of record on or after the Attachment Date as the Agent shall determine; the Agent shall give notice of such filing to the extent such pledge thereunder would be prohibited by applicable lawCompany, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that but the failure to deliver give such Mortgages by notice shall not affect the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery validity or effectiveness of such Mortgages as soon as reasonably practicable after the Effective Date; (4filing) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5C) no Mortgages or vehicle titles the Company shall be required hereunder make disclosure of the grant of liens and security interests and the conditions of their effectiveness pursuant to the extent the Borrower is this Section 7.15 in compliance its filings with the Mortgage SEC and Vehicle Title Requirement)in its financial statements, and, additionally, in other public documents where such disclosure is required or where its omission would be misleading.
Appears in 1 contract
Samples: Credit Agreement (Midway Games Inc)
Collateral. (a) Subject to To secure full and complete payment and performance of the limitations on property or assets acquired after the Effective Date set forth in Section 5.13Obligations, the Borrower willshall grant and convey to and create in favor of, the Administrative Agent for the ratable benefit of the Lenders a continuing first priority perfected Lien and will cause each other Credit Party tosecurity interest in, to and on all of the assets of the Borrower (except to the extent prohibited by law) including but not limited to the following: (i) cause all of the Borrower's present and future assets, including, without limitation, its equipment, inventory, accounts receivable, instruments, general intangibles, intellectual property and real estate; and (ii) all of the Capital Stock of each direct or indirect Restricted Subsidiary of the Borrower and any other direct or indirect Restricted Subsidiary of the Borrower, now owned property (subject or hereafter acquired and/or designated by the Borrower, and the Restricted Subsidiaries shall grant and convey to and create in favor of, the Administrative Agent for the ratable benefit of the Lenders a continuing first priority perfected Lien and security interest in, to and on all of the Capital Stock of each Restricted Subsidiary owned by a Restricted Subsidiary, now owned or hereafter acquired. Notwithstanding anything to the exceptions contrary contained herein and herein, the Borrower shall not be required to grant to the Administrative Agent a security interest in any Collateral Document general intangibles or other rights arising under contracts of the Borrower which are listed and excluding described on Schedule 7.9(a) (the "Excluded Collateral") until such time as any required consents with respect thereto have been obtained; provided, however, that the Borrower shall grant to the Administrative Agent for the ratable benefit of the Lenders a continuing first priority perfected Lien and security interest in and to all proceeds (cash or otherwise) of such Excluded Collateral. The Borrower agrees to use its commercially reasonable efforts to obtain all necessary consents for the grant of a security interest in the Excluded AssetsCollateral to the Administrative Agent for the ratable benefit of the Lenders. (b) With respect to any new Restricted Subsidiary created, acquired or designated after the date hereof, the Borrower or a Restricted Subsidiary, as applicable, shall promptly (i) execute and deliver to the Administrative Agent such amendments to the Pledge Agreements as the Administrative Agent or the Majority Lenders deem necessary or advisable in order to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority security interest in the Capital Stock of such Restricted Subsidiary, (ii) in the case of any such Restricted Subsidiary, deliver to the Administrative Agent the certificates representing the Capital Stock of such Restricted Subsidiary, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Borrower or a Restricted Subsidiary, as applicable, (iii) take such other actions as shall be subject at all times necessary or advisable to first priority, perfected Liens in favor of grant to the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations Lenders a perfected first priority security interest in accordance with the terms and conditions of the Collateral Documentssuch Capital Stock, subject in all cases to Permitted Liens. Without limiting the generality of the foregoingincluding, without 53 60 limitation, the Borrower will cause the Applicable Pledge Percentage filing of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to such Uniform Commercial Code financing statements as may be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required requested by the Administrative Agent. Notwithstanding , and (iv) if requested by the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder Administrative Agent, deliver to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for legal opinions relating to the benefit of matters described in the Holders of Secured Obligations pursuant to legally validpreceding clauses (i), binding (ii) and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property iii), which opinions shall be required hereunderin form and substance, and no Mortgages shall be required hereunder from counsel, reasonably satisfactory to the extent Administrative Agent. (c) With respect to any newly acquired assets or transfers of assets to the Borrower, promptly after acquiring or receiving any such Mortgages are not readily obtainable under relevant applicable law asset, execute and deliver or if cause to be delivered to the Administrative Agent in a form reasonably acceptable to the Administrative Agent (i) one or its counsel reasonably determines that more mortgages and/or security agreements which grant to the Administrative Agent a first priority perfected security interest in such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant assets (subject to legally valid, binding any Liens permitted by Section 8.3) and enforceable Mortgages; (3ii) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date additional agreements and other documents as the Administrative Agent may agree reasonably deems necessary to establish a valid, enforceable and perfected first priority security interest in such assets (subject to any Liens permitted by Section 8.3). (d) Upon request of the exercise Administrative Agent, promptly execute and deliver or cause to be executed and delivered to the Administrative Agent in a form reasonably acceptable to the Administrative Agent (i) one or more mortgages, pledge agreements and/or security agreements which grant to the Administrative Agent a first priority perfected security interest (subject to any Liens permitted by Section 8.3) in such property of its reasonable discretion the Borrower (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required including Capital Stock of direct or indirect Restricted Subsidiaries) as shall be specified by the Administrative Agent shall constitute a Default under clause and (d)(iii) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages additional agreements and other documents as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need reasonably deems necessary to be retitled to reflect the Administrative Agent as the lienholder; establish a valid, enforceable and (5) no Mortgages perfected first priority security interest in such property or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).Capital Stock. 7.10
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Collateral. (a) Subject The Obligations shall be secured by first and prior Liens (subject only to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, Permitted Encumbrances) covering and will cause each other Credit Party to, encumbering (i) cause the Minimum Value of the oil and gas properties owned by Borrower and its Restricted Subsidiaries, (ii) all of its owned property Related Assets (subject to the exceptions contained herein and in any Collateral Document and excluding extent Borrower has requested that the Excluded Assets) to value of such Related Assets be subject at all times to first priority, perfected Liens in favor of the taken into account by Administrative Agent and Required Banks for purposes of establishing the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms Borrowing Base), and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage (iii) one hundred percent (100%) of the issued and outstanding Capital Stock (other than Excluded Assets) Equity of each Pledge Restricted Subsidiary directly owned by of Borrower. On the Closing Date, Borrower or any other Credit Party shall (A) deliver to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent for the ratable benefit of each Bank, Mortgages and Assignment and Amendments to secure Mortgages in form and substance acceptable to Administrative Agent and duly executed by Borrower and/or its Restricted Subsidiaries, together with such other assignments, conveyances, amendments, agreements and other writings, including, without limitation, UCC-1 and UCC-3 financing statements (each duly authorized and executed, as applicable) as Administrative Agent shall deem necessary or appropriate to grant, evidence and perfect first and prior Liens in the Obligations in accordance with the terms oil and conditions gas properties and other interests of the Collateral Documents to the extent, Borrower and within such time period as is, reasonably its Restricted Subsidiaries required by the this Section 6.1(a), (B) execute and deliver to Administrative Agent. Notwithstanding the foregoing: Agent (1) no a Restricted Subsidiary Pledge Agreement in respect of Agreement, and (2) such UCC-1 and UCC-3 financing statements as Administrative Agent shall request to fully evidence and perfect the Capital Stock of any Liens created by such Restricted Subsidiary Pledge Subsidiary shall be required hereunder Agreement, and (C) deliver to Administrative Agent (to the extent such pledge thereunder would be prohibited by applicable law, or not previously delivered pursuant to the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit terms of the Holders Existing Chase Credit Agreement) the certificate(s) evidencing the issued and outstanding Equity of Secured Obligations SWAT, PBNR and POC, duly endorsed or accompanied by appropriate blank stock powers. Borrower hereby authorizes Administrative Agent, and its agents, successors and assigns, to file any and all necessary financing statements under the Uniform Commercial Code, assignments and/or continuation statements as necessary from time to time (in Administrative Agent’s sole discretion) to perfect (or continue perfection of) the Liens granted pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Loan Papers.
Appears in 1 contract
Collateral. (a) Subject to The Obligations and the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, Hedge Obligations shall be secured by a perfected first priority lien and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) security interest to be subject at all times to first priority, perfected Liens in favor of held by the Administrative Agent for the benefit of the Holders of Secured Obligations Lenders, pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Security Documents, subject in all cases to Permitted Liens. Without limiting (i) the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued direct and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly indirect Equity Interests owned by the Borrower or and its Subsidiaries in each Subsidiary of the Borrower that owns any Collateral Property and in each other Subsidiary of the Borrower (excluding the BVI Entities) that owns an interest in any other Credit Party Real Estate that is not a Collateral Property, in each case, pursuant to documentation reasonably acceptable to the Agent; provided that the Borrower shall not be subject at all times required to a first priority, perfected Lien in favor pledge any portion of such Equity Interests to the Administrative Agent to secure the Obligations in accordance with the terms extent (and conditions of the Collateral Documents only to the extent) that such a grant of a security interest is prohibited by, and within or under the terms thereof, may give rise to a default, breach, right of recoupment, buyout, repurchase, purchase option, right of first refusal or similar rights (whether effective with the pledge or any related exercise of rights thereunder), claim, defense or remedy, or directly or indirectly results in the termination of or requires any consent not obtained under, the documents evidencing or securing third-party first mortgage or mezzanine indebtedness of such time period as isSubsidiary; provided further that, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable lawof any portion of such Equity Interests is restricted as set forth in the previous proviso, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunderBorrower shall, and no Mortgages shall be required hereunder cause any applicable Subsidiaries to, to the extent permitted under any such Mortgages are not readily obtainable under relevant applicable law or if debt instruments, pledge to the Administrative Agent or its counsel Agent, pursuant to documentation reasonably determines that such Mortgage would not provide material credit support for acceptable to the benefit Agent, all of the Holders economic interests and rights to receive dividends, distributions, or cash flow in respect of Secured Obligations pursuant to legally valid, binding and enforceable Mortgagesthe Equity Interests of such Subsidiary; (3ii) no Mortgages are required all of the economic interests and rights to be delivered hereunder until December 31receive dividends, 2009 distributions, or such later date as cash flow in respect of the Administrative Agent may agree in Equity Interests of the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective DateBVI Entities; provided that the Borrower hereby agrees shall not be required to use its best efforts to cause the delivery pledge any portion of such Mortgages as soon as reasonably practicable after Equity Interests to the Effective Date; extent (4and only to the extent) no vehicle titles for that such a grant of a security interest is prohibited by, or under the motor vehicles owned by terms thereof, may give rise to a default, breach, right of recoupment, buyout, repurchase, purchase option, right of first refusal or similar rights (whether effective with the Credit Parties and titled to reflect pledge or any related exercise of rights thereunder), claim, defense or remedy, or directly or indirectly results in the Administrative Agent as termination of or requires any consent not obtained under, the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholderdocuments evidencing or securing third-party first mortgage or mezzanine indebtedness of such Subsidiary; and (5iii) no Mortgages the proceeds of all Equity Offerings and any other capital events with respect to any Credit Party and its Subsidiaries, including, without limitation, any asset sales, financing, refinancings, or vehicle titles shall be required hereunder recapitalizations of any such Person or any of its assets. For the avoidance of doubt, notwithstanding anything to the extent contrary set forth in this Agreement, it is hereby acknowledged and agreed that until the Borrower mezzanine loan secured by the pledge of mezzanine borrower’s ownership interest in HPT Sunbelt Portfolio, LLC, the owner of the properties known as the Inverness Center, Meridian Building, and Wxxxx Fargo Tower that are located in Alabama is paid in compliance with full or otherwise amended to permit such transactions, no Equity Interests or economic interests in HPT Sunbelt Portfolio, LLC shall constitute Collateral for the Mortgage Obligations and Vehicle Title Requirement)HPT Sunbelt Mezzanine, LLC shall not be a Guarantor or otherwise be obligated under the Obligations.
Appears in 1 contract
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes, the Intermediate Holdings Guarantee and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes, the Intermediate Holdings Guarantee and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuer set forth in Section 5.13, the Borrower will7.07, and will cause each the Notes, Intermediate Holdings Guarantee and the Note Guarantees and the Intercreditor Agreements and the Collateral Documents, shall be secured by a Lien on the Collateral on an equal basis with the other Credit Party to, (i) cause all of its owned property First Lien Priority Indebtedness and on a senior basis to the First Lien Junior Priority Indebtedness and the Second Priority Lien Obligations (subject to Permitted Liens), as provided in this Indenture, the exceptions contained herein Collateral Documents and in any Collateral Document the Intercreditor Agreements to which the Issuer, Intermediate Holdings and excluding the Excluded Assets) Note Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture and will be subject at secured by all times to first priority, perfected Liens in favor of the Administrative Agent Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture, the Collateral Documents and the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints The Bank of New York Mellon Trust Company, N.A. as the initial Collateral Agent and the Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Issuer, Intermediate Holdings and the Note Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders of Secured Obligations and the Trustee, in each case pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to and the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Intercreditor Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Indenture (Domus Holdings Corp)
Collateral. At Closing, Peabody will provide each Surety collateral equal to such Surety’s Maximum Amount (a) Subject inclusive of collateral in such Surety’s possession immediately prior to Closing). “Maximum Amount” shall have the limitations on property or assets acquired after the Effective Date meaning set forth in Section 5.13, the Borrower will, letter agreement between Peabody and will cause each other Credit Party to, (i) cause all such Surety and substantially in the form of its owned property (subject Exhibit 3 hereto. • $75 million of additional collateral to the exceptions contained herein and Sureties collectively, a minimum of which shall be $40 million in any Collateral Document and excluding the Excluded Assets) letters of credit acceptable to be subject at all times to first priorityeach Surety, perfected Liens in favor as soon as reasonably practicable following execution of the Administrative Agent TSA by all Sureties (but in no event greater than 30 calendar days) and such additional collateral shall be distributed among the Sureties on a pro-rata basis based on respective outstanding penal sums of the entire surety program in accordance with the schedule set forth on Exhibit 3 (with the Sureties agreeing to cooperate in effecting any bond replacements and collateral redistributions as promptly as practicable in accordance with Exhibit 3); and • $200 million of second liens on all equipment identified in the schedule set forth on Exhibit 4 for the benefit of the Holders Sureties upon Closing which are subject to that certain Collateral Agency and Security Agreement, dated as of Secured Obligations to secure the Obligations in accordance May 3, 2022 with the terms Bank of New York Mellon Trust Company, N.A., as collateral agent. Pursuant to the Collateral Agency and conditions Security Agreement, Peabody will file UCC-3 continuation statements at the appropriate times to ensure continued perfection of the Collateral Documents, subject existing liens. A trustee mutually agreed upon by all parties shall be appointed to allocate such second liens among the Sureties in the amounts set forth on Exhibit 5. Any of such applicable liens shall be released upon Xxxxxxx’x request in the event that some or all cases to Permitted Liens. Without limiting the generality of the foregoingassets set forth on Exhibit 4 are sold or otherwise transferred by Peabody. In the event Peabody seeks to sell any equipment upon which the Sureties have a second lien, Peabody shall notify the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject Sureties at all times to a first priority, perfected Lien least 30 days in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise advance of its reasonable discretion (it being understood intention to sell such equipment and agreed that must obtain the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent Sureties’ consent, which shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to not be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)unreasonably withheld.
Appears in 1 contract
Collateral. (a) Subject The Notes and the Guaranty Agreements will be secured pursuant to and entitled to all of the limitations on property or assets acquired applicable benefits of the Security Documents. In the event that at any time after the Effective Date set forth in Section 5.13, (a) the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject Parent shall have maintained an Acceptable Rating at all times to first priority, perfected Liens in favor during each of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement its two previous fiscal quarters in respect of the Capital Stock long-term, senior unsecured Debt of the Issuer and (b) Total Debt, determined as of the end of each of the four most recently ended fiscal quarters of the Parent, does not exceed two hundred fifty percent (250%) of EBITDA for the period of four consecutive fiscal quarters of the Parent ended at the end of each of such four most recently ended fiscal quarters of the Parent, the Parent may give written notice to each holder of Notes (which notice shall include copies of the letters to the Parent from Standard & Poor's or Moody's evidencing that such Acceptable Rating is in full force and effect and has been in full force and effect at all times during each of the two previous fiscal quarters of the Parent immediately preceding the date of such notice) requesting that the holders of the Notes agree not to direct the U.S. Collateral Trustee or the Canadian Collateral Trustee to enforce any of the provisions of the Security Documents, commencing on a date specified in such notice (the "COLLATERAL SUSPENSION DATE") that is not less than ten (10) Business Days after the date of such notice. The holders of the Notes agree not to direct the U.S. Collateral Trustee or the Canadian Collateral Trustee to, and the holders of the Notes shall not, take any action to enforce or to exercise any rights or remedies under or in respect of any Pledge Subsidiary shall be required hereunder to of the extent such pledge thereunder would be prohibited by applicable law, or provisions of the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support Security Documents for the benefit of period commencing on the Holders of Secured Obligations pursuant to legally valid, binding Collateral Suspension Date and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property ending on the earliest date on which the Collateral Suspension Conditions shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required continue to be delivered hereunder until December 31satisfied (the "COLLATERAL SUSPENSION PERIOD"), 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause holders of the delivery Notes, the U.S. Collateral Trustee and the Canadian Collateral Trustee shall have received an officer's certificate, executed by a Senior Officer and dated the Collateral Suspension Date, specifying that each of the applicable Collateral Suspension Conditions are satisfied as of such Mortgages as soon as reasonably practicable date. If at any time after the Effective Date; Collateral Suspension Date any of the Collateral Suspension Conditions shall not continue to be satisfied (4other than clause (d) in the definition of "Collateral Suspension Conditions"), the foregoing agreement of the holders of the Notes not to so direct the U.S. Collateral Trustee or the Canadian Collateral Trustee, and to not take any such action, shall no vehicle titles for longer be in effect and the motor vehicles owned holders of the Notes shall be free to so direct the U.S. Collateral Trustee and the Canadian Collateral Trustee to take any and all permitted actions under any of the Security Documents and to take any actions permitted to be taken by the Noteholders thereunder. The provisions of Section 5.10 shall continue to apply during the Collateral Suspension Period. At any time that there is no Debt outstanding under the Credit Parties Agreement, and titled each of the Bank Term Facilities and Bank Facility A shall have been terminated, if any member of the Restricted Group enters into a successor revolving credit facility to reflect replace Bank Facility A which is not secured by any Liens on any property of any member of the Administrative Agent as Restricted Group, and the lienholder on the Effective Date need Collateral Suspension Conditions shall continue to be retitled satisfied at such time, the holders of the Notes shall direct the U.S. Collateral Trustee and the Canadian Collateral Trustee to reflect fully release the Administrative Agent as Liens granted under the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Security Documents.
Appears in 1 contract
Samples: Intertape Polymer Group Inc
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at At all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of following the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoingTrigger Event, the Borrower will cause the Applicable Pledge Percentage of the issued each Obligor’s tangible and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly intangible personal property now owned or hereafter acquired by the Borrower or any other Credit Party it to be subject at all times to a first priority, perfected Lien lien (subject to liens permitted hereunder) in favor of the Administrative Agent Bank to secure the Obligations obligations incurred under this Agreement or otherwise in accordance connection with this Agreement or any guaranty, and in connection therewith, the terms Borrower shall cause each Obligor to execute and conditions deliver to the Bank the security agreement in the form of Annex I hereto and all other pledge agreements, control agreements, filings and other collateral documents requested by the Bank. The Borrower shall provide opinions of counsel and any filings and deliveries reasonably necessary in connection therewith to perfect the security interests therein, all in form and substance reasonably satisfactory to the Bank. The Borrower hereby irrevocably appoints the Bank to act as, and the Bank shall have the right to act as, the Borrower’s and each Guarantor’s lawful attorney-in-fact, with full power of substitution, in the name of the Borrower and such Guarantors, to execute any collateral documents and to take generally any action in connection with any of the collateral documents; provided, however, that the Bank shall not exercise its rights as attorney-in-fact unless and until the Collateral Documents Trigger Event occurs and the Borrower and the Guarantors have failed to execute and deliver the collateral documents within fifteen (15) calendar days after demand by the Bank. Notwithstanding anything to the extentcontrary contained herein, and within such time period as is, reasonably required by if the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect principal balance outstanding of the Capital Stock of credit extended under this Agreement exceeds Fifty Million Dollars ($50,000,000) at any Pledge Subsidiary shall be required hereunder to time, then upon the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit request of the Holders of Secured Obligations pursuant Bank, the Borrower shall cause 65% (or such greater percentage that, due to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant a change in an applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by after the date ultimately required by the Administrative Agent shall constitute a Default under clause hereof, (d)(ii) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts could not reasonably be expected to cause the delivery undistributed earnings of such Mortgages subsidiary as soon as reasonably practicable after the Effective Date; (4) no vehicle titles determined for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need United States federal income tax purposes to be retitled treated as a deemed dividend to reflect the Administrative Agent as the lienholder; such subsidiary's parent and (5ii) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).could not
Appears in 1 contract
Collateral. (a) Subject Upon the occurrence of a Triggering Event, Minority Lenders shall have the right to direct the Administrative Agent to, and the Administrative Agent if so directed by Minority Lenders shall, declare any or all of the Collateral Documents effective and to require that the Restricted Subsidiaries from time to time grant to the limitations on property Administrative Agent under the applicable Collateral Document a first priority security interest in one or assets acquired after the Effective Date set forth more items of Collateral as specified in Section 5.13such request pursuant to such direction of Minority Lenders. Upon receipt of such request, the Borrower willapplicable Restricted Subsidiary shall execute and deliver to the Administrative Agent a Collateral Supplement under the applicable Collateral Document granting a security interest in such specified Collateral to the Administrative Agent and, and will cause each other Credit Party toif applicable pursuant to Section 7.16(b), to the USA Mobile Indenture Trustees. Such Restricted Subsidiary shall also deliver to the Administrative Agent such documents as the Administrative Agent may request in connection therewith, including, without limitation, (i) cause all duly executed UCC-1 Financing Statements, (ii) duly executed Grants of its owned property Security Interest (subject Trademarks), (iii) opinions of counsel, in form and substance satisfactory to the exceptions contained herein and in any Collateral Document and excluding Administrative Agent, with respect to the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor enforceability of the Administrative Agent for security interests so granted and the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms perfection thereof and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (iv) other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to documents as may reasonably be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required requested by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable lawIn connection therewith, or the Administrative Agent or its counsel reasonably determines that is hereby irrevocably authorized and empowered as each Restricted Subsidiary's attorney-in- fact, to execute such pledge would not provide material credit support for the benefit UCC-1 Financing Statements, Grants of the Holders of Secured Obligations pursuant to legally valid, binding Security Interest (Trademarks) and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder instructions to the extent such Mortgages are not readily obtainable under relevant applicable law Escrow Agent and to deliver or if file the same and to make, at the Administrative Agent or its counsel Agent's option, all other filings and to give all other notices as it shall reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) deem necessary with respect to any of the Fee Owned Real Property owned by Collateral, all of which may be done with or without the signature of any Restricted Subsidiary. The foregoing power constitutes a power coupled with an interest which shall survive until all of the obligations under the Loan Documents have been indefeasibly paid in full in cash and the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Agreement has been terminated.
Appears in 1 contract
Collateral. All obligations of Borrower under the Credit Facility and of the Guarantors under the guarantees, will be secured by first priority perfected security interests (aand where applicable consisting of fixed and floating charges) Subject in substantially all existing and after-acquired real and personal property of Borrower and each Guarantor, including, without limitation, 100% of all outstanding equity interests, subject to customary exclusions to be agreed (including mutually acceptable limitations on guarantees by foreign subsidiaries and liens on the assets or equity interests of foreign subsidiaries, in each case to the limitations extent a material adverse tax effect (including without limitation from the effect of Section 956 of the Internal Revenue Code of 1986, as amended) would result on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower willand the Guarantors based on diligence satisfactory to the Lenders, provided that the foregoing limitations shall not apply to PLC or DAC (the “Collateral”). Borrower and will cause each the Guarantors shall be required to maintain account control agreements with respect to all material deposit and securities accounts (in the United States and to the extent applicable other methods of perfection for floating and fixed charges in any other applicable jurisdiction), subject to exclusions and limitations to be agreed but no less restrictive than those contained in the Existing Bridge Credit Party to, (i) cause Agreement. Control agreement springing triggers shall in all of its owned property (events be subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor applicable cure periods for events of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock default (other than Excluded Assets) events of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party default that are defined to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agentinclude cure periods). Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall No immaterial subsidiary will be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) take any action with respect to the Fee Owned Real Property owned creation or perfection of liens under non-United States law, other than reasonable actions with respect to PLC or DAC. All of the above-described pledges, security interests and mortgages shall be created on terms, and pursuant to documentation reasonably satisfactory to the Lenders (including, in the case of real property, by customary items such as satisfactory title insurance and surveys), and none of the Collateral shall be subject to any other liens, claims or encumbrances, except permitted liens and encumbrances acceptable to the Lenders to be set forth in the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Documentation.
Appears in 1 contract
Samples: Restructuring Support Agreement (Novelion Therapeutics Inc.)
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes, when and as the same shall become due and payable, whether on the Maturity Date, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of and interest on the Notes, to the limitations on property or assets acquired after extent lawful, and the Effective Date set forth in Section 5.13due and punctual performance of all Obligations of the Issuer and the Guarantors to the Holders, the Borrower willTrustee and/or the Collateral Agent, in accordance with the terms of the Notes, this Indenture, the Note Guarantees and the First Lien Notes Security Documents, shall be secured, according to the terms hereunder or thereunder, by a Lien on the Collateral on an equal and ratable basis with any other Fixed Asset Obligations, subject to Permitted Liens and the terms of the First Lien and Third Lien Intercreditor Agreement, as provided in this Indenture and the First Lien Notes Security Documents, and will cause each other Credit Party to, (i) cause be secured by all of its owned property (the Collateral pledged pursuant to the First Lien Notes Security Documents hereafter delivered as required or permitted by this Indenture and the First Lien Notes Security Documents, and subject to the exceptions contained herein terms thereof. The Issuer and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priorityGuarantors, perfected Liens in favor of the Administrative Agent for the benefit of the Holders Holders, hereby appoints U.S. Bank Trust Company, National Association as the initial Collateral Agent, and the Collateral Agent and the Trustee are hereby authorized and directed to execute and deliver the First Lien Notes Security Documents to which it is a party. Each Holder by its acceptance of Secured Obligations any Notes and the Note Guarantees thereof, irrevocably consents and agrees to secure such appointment. The Collateral Agent shall have the Obligations privileges, powers and immunities set forth in accordance with this Indenture and the terms and conditions First Lien Notes Security Documents. Notwithstanding any provision to the contrary contained elsewhere in this Indenture or the First Lien Notes Security Documents, the duties of the Collateral DocumentsAgent shall be ministerial and administrative in nature and the Collateral Agent shall not be deemed to have any trust or other fiduciary relationship with the Trustee, subject in all cases to Permitted Liensany Holder, the Issuer or any Guarantor. Without limiting the generality of the foregoingforegoing sentence, the Borrower will cause the Applicable Pledge Percentage use of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party term “agent” in this Indenture with reference to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents Agent is not intended to the extentconnote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder is intended to the extent such pledge thereunder would be prohibited by applicable law, create or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)only an administrative relationship between independent contracting parties.
Appears in 1 contract
Samples: Supplemental Indenture (Cooper-Standard Holdings Inc.)
Collateral. (a) Subject The Borrower, with full title guarantee and as a continuing security for the payment and discharge on the due date therefor by the Borrower of all Loan Balances under these Terms and Conditions, hereby grants to the limitations on property Agent (as security agent and trustee for the Lender) and the Lender, by way of security, a first priority lien over all rights, title and interest under, or assets acquired after the Effective Date set forth in Section 5.13connection with, the Till Revenues, the Designated Till and all other E-money Till(s) held by the Borrower willand all claims of whatsoever nature relating to the Till Revenues, the Designated Till and such E-money Till(s). The Borrower agrees that the Lender and/or the Agent (as security agent and trustee for the Lender) may at any time set off any liability of the Borrower to the Lender (whether such liability is present or future, liquidated or unliquidated, and will cause each whether or not it arises under these Terms and Conditions) against the Till Revenues, other Credit Party to, (ifunds held in the Designated Till or such other E-money Till(s) cause all from time to time or any liability of its owned property (subject the Lender to the exceptions contained herein Borrower, and the Borrower hereby authorises the Lender and/or the Agent (as the case may be) to do so. Any exercise of the rights under this clause 12.2 shall not limit or affect any other rights or remedies available to the Lender under these Terms and Conditions or otherwise. The Borrower shall forthwith upon request by the Lender: execute in respect of the Till Revenues, the Designated Till and such other E-money Till(s) such mortgage, charge, pledge, assignment or other security interest or Encumbrance (as the Lender directs) in favour of the Lender and/or the Agent (as security agent and trustee for the Lender) and in any Collateral Document such form as the Lender requires; and excluding the Excluded Assets) from time to be subject time and at all times execute and do all such further assurances, documents (to first priority, perfected Liens in favor of the Administrative Agent contain such clauses for the benefit of the Holders of Secured Obligations to secure Lender as the Obligations in accordance with Lender shall require), acts and things and give all such notices, orders and directions as the terms and conditions Lender may reasonably require for facilitating the realisation of the Collateral DocumentsLoan Balance and for exercising all the powers, subject in all cases to Permitted Liens. Without limiting authorities and discretions hereby and/or by law conferred on the generality Lender or any receiver or agent of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Lender.
Appears in 1 contract
Samples: Agreement
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth Administrative Agent’s receipt of copies of recent Lien, tax and judgment searches in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of jurisdiction and/or office reasonably requested by the Administrative Agent for with respect to the benefit Credit Parties; (b) all Capital Stock of the Holders Borrower and all Capital Stock of Secured Obligations to secure the Obligations in accordance with the terms and conditions each wholly owned Restricted Subsidiary of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first prioritySubsidiary Guarantor, perfected Lien in favor each case as of the Administrative Agent Closing Date, shall have been pledged pursuant to secure the Obligations in accordance with the terms Security Agreement (except that such Credit Parties shall not be required to pledge any Excluded Capital Stock) and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default have received all certificates, if any (except as permitted by Section 9.17) representing such securities pledged under clause the Security Agreement, accompanied by instruments of transfer and undated stock powers endorsed in blank; and (d)(ic) of Article VII hereof(i) except with respect to intercompany Indebtedness, all evidences of Indebtedness for borrowed money in a principal amount in excess of $10,000,000 (individually) that is owing to the Fee Owned Real Property owned Borrower or any Subsidiary Guarantor shall be evidenced by a promissory note and shall have been pledged pursuant to the Security Agreement, and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank; (ii) all Indebtedness of the Borrower and each Restricted Subsidiary on the Closing Date that is owing to any Credit Party shall be evidenced by the Credit Parties Intercompany Note, which shall be executed and delivered by the Borrower and each Restricted Subsidiary on the Effective DateClosing Date and shall have been pledged pursuant to the Security Agreement, and the Collateral Agent shall have received such Intercompany Note, together with undated instruments of transfer with respect thereto endorsed in blank; provided that provided, however, that, if the Intercompany Note cannot be delivered to the Collateral Agent on or prior to the Closing Date notwithstanding the Borrower’s use of commercially reasonable efforts to do so, delivery thereof shall not be a condition to closing, and in such case the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder deliver same to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).-159- #96562806v11
Appears in 1 contract
Collateral. Each Lender agrees that any action taken by Agent or the Requisite Lenders (aor, where required by the express terms of this Agreement, a greater number of Lenders) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions provisions of this Agreement or of the Collateral Documentsother Loan Documents relating to the Collateral, subject in and the exercise by Agent or the Requisite Lenders (or, where so required, such greater number of Lenders) of the powers set forth herein or therein, together with such other powers as are reasonably incidental thereto, shall be authorized and binding upon all cases to Permitted Liensof Lenders and Agent. Without limiting the generality of the foregoing, Agent shall have the Borrower will cause sole and exclusive right and authority to (i) act as the Applicable Pledge Percentage disbursing and collecting agent for Lenders with respect to all payments and collections arising in connection herewith and with the Loan Documents in connection with the Collateral; (ii) execute and deliver each Loan Document relating to the Collateral and accept delivery of each such agreement delivered by Borrower; (iii) act as collateral agent for Lenders for purposes of the issued perfection of all security interests and outstanding Capital Stock Liens created by such agreements and all other purposes stated therein; (other than Excluded Assetsiv) manage, supervise and otherwise deal with the Collateral; (v) take such action as is necessary or desirable to maintain the perfection and priority of each Pledge Subsidiary directly owned the security interests and Liens created or purported to be created by the Borrower Loan Documents relating to the Collateral; and (vi) except as may be otherwise specifically restricted by the terms hereof or of any other Loan Document, exercise all right and remedies given to such Agent and Lenders with respect to the Collateral under the Loan Documents relating thereto, Applicable Law or otherwise. Agent shall have no obligation whatsoever to any Lender or any other Credit Party Person to be subject assure that the Collateral covered by this Agreement or the other Loan Documents exists or is owned by Borrower or is cared for, protected or insured or has been encumbered or that the Liens granted to Agent, on behalf of the Lenders, herein or pursuant hereto have been properly or sufficiently or lawfully created, perfected, protected, enforced or maintained or are entitled to any particular priority, or to exercise at all times or in any particular manner or under any duty of care, disclosure, or fidelity, or to a first prioritycontinue exercising, perfected Lien in favor any of the Administrative rights, authorities and powers granted or available to Agent to secure the Obligations in accordance with the terms and conditions this Agreement or in any of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge AgreementsLoan Documents; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that in respect of the failure to deliver such Mortgages Collateral covered by this Agreement or the date ultimately required other Loan Documents, or any act, omission or event related thereto, Agent may act in any manner it may deem appropriate, in its discretion, given Agent’s own interest in Collateral covered by this Agreement or the Administrative Loan Documents as one of Lenders and Agent shall constitute a Default under clause (d)(i) have no duty or liability whatsoever to any of Article VII hereof) the other Lenders; provided, that Agent shall exercise the same care which it would in dealing with respect loans for its own account. Each Lender agrees that it will not have any right individually to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees enforce or seek to use its best efforts enforce this Agreement or any other Loan Document or to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles realize upon any Collateral security for the motor vehicles owned Loans or other Indebtedness; it being understood and agreed that such rights and remedies may be exercised only by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance accordance with the Mortgage and Vehicle Title Requirement)terms of the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (GlassBridge Enterprises, Inc.)
Collateral. The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by (a) Subject to the limitations valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each U.S. Subsidiary in all capital stock and other equity interests held by such Person in each of its U.S. Subsidiaries, whether now owned or hereafter formed or acquired, and will cause all proceeds thereof, and (b) valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower and each other Credit Party toSubsidiary in all personal property, fixtures, and real estate, whether now owned or hereafter acquired or arising, and all proceeds thereof; provided, however, that: (i) cause all the Lien of its owned property (the Administrative Agent on Property subject to a Capital Lease or conditional sale agreement or subject to a purchase money lien, in each instance to the extent permitted hereby, shall be subject to the exceptions contained herein rights of the lessor or lender thereunder, (ii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on local pxxxx cash deposit accounts maintained by the Borrower and its Subsidiaries in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected shall not exceed $100,000 in the aggregate and Liens on payroll accounts maintained by the Borrower and its Subsidiaries need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligation, and (iii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the total value of such property at any one time not so perfected shall not exceed $500,000 in the aggregate. The Borrower acknowledges and agrees that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, subject in all cases the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingimmediately preceding sentence, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Collateral. (a) Subject As security for all indebtedness of Borrower to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13Bank subject hereto, the Borrower will, and will cause each other Credit Party to, (i) cause is granting to Bank security interests of first priority in real property located in Collin County, Texas (the "Real Property"), pursuant to and as more particularly described in that certain Deed of Trust executed by Borrower in favor of Bank dated the date of this Agreement (the "Deed of Trust"), and (ii) hereby reaffirms its previous grant of security interests of first priority in all Borrower's accounts receivable and other rights to payment, general intangibles, inventory, equipment, and a Securities Account held at Xxxxx Fargo Brokerage Services, LLC., Account # 00000000 pursuant to the applicable Existing Security Documents (the "Existing Security Interests") (the Real Property and the Existing Security Interests, collectively, the "Collateral"). All of its owned property (the foregoing shall be evidenced by and subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor terms of the Administrative Agent Deed of Trust, the Existing Security Documents and such other security agreements, financing statements, deeds of trust and other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank (collectively, the "Security Documents"). Borrower shall reimburse Bank immediately upon demand for the benefit all costs and expenses incurred by Bank in connection with any of the Holders foregoing security, including without limitation, filing and recording fees and costs of Secured Obligations to secure appraisals, audits and title insurance. As provided in the Obligations in accordance Deed of Trust, Bank is agreeing that it will, provided no Event of Default has occurred and is continuing at the time, upon written request of Grantor made at any time after or contemporaneously with the terms and conditions payment in full of all principal of the Collateral DocumentsTerm Note, all accrued, unpaid interest thereon, and satisfaction of any other obligations of Borrower to Bank in connection with the Term Note, release this Deed of Trust by delivery of a proper written release executed and acknowledged in recordable form. Also, Bank agrees that it will release the Existing Security Interests and the security interests granted pursuant to Section 7.12 below by delivery of one or more proper written releases and terminations of financing statements, as applicable, subject to the conditions that (i) no Event of Default has occurred and is continuing at the time the release or termination is requested by Borrower, (ii) any remaining obligations of Bank to make further advances under the Line of Credit Note shall have been terminated or expired, and (iii) the release is requested by Borrower after or contemporaneously with the payment in all cases to Permitted Liens. Without limiting the generality full of any outstanding principal of the foregoingLine of Credit Note, the Borrower will cause the Applicable Pledge Percentage all accrued, unpaid interest thereon, and satisfaction of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party obligations of Borrower to be subject at all times to a first priority, perfected Lien Bank in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Intervoice Inc)
Collateral. Each Significant Subsidiary of the Borrower (a) Subject to the limitations on property including each Significant Subsidiary which is formed or assets acquired after the Effective Closing Date set forth and each Subsidiary of the Borrower which becomes a Significant Subsidiary after the Closing Date) shall within thirty (30) days following the date such Person becomes a Significant Subsidiary (or such later date at the Administrative Agent shall agree): (i) pledge the equity interests (except to the extent constituting Excluded Collateral) it owns in Section 5.13any other Significant Subsidiary to the Collateral Agent for the benefit of the Lenders on a first priority perfected basis pursuant to the Pledge Agreements, (ii) cause all of the issued and outstanding capital stock, partnership interests, member interests or other equity interest of such Significant Subsidiary (except to the extent constituting Excluded Collateral) that are owned by the Borrower or another Subsidiary of the Borrower to be pledged on a first priority perfected basis to the Collateral Agent for the benefit of the Lenders pursuant to the Pledge Agreements, (iii) execute and deliver to the Collateral Agent for the benefit of the Lenders Collateral Documents in form and substance reasonably satisfactory to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Lenders in substantially all of the assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude from the Collateral the Excluded Collateral, (iv) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (v) if reasonably requested by the Administrative Agent, deliver Indemnity Agreements, (vi) obtain Uniform Commercial Code, lien, tax, mortgage, leasehold mortgage, and judgment searches (including searches of the applicable real estate indexes), with the results, form scope and substance of such searches to be satisfactory to the Administrative Agent, and (vii) provide the Administrative Agent with evidence that the Loan Parties have taken all actions required under the Flood Laws and/or reasonably requested by the Administrative Agent to assist in ensuring that each Lender is in compliance with the Flood Laws applicable to the Collateral, including, but not limited to, providing the Administrative Agent with the address and/or GPS coordinates of each structure on any real property that is or will be subject to a mortgage in favor of the Administrative Agent, for the benefit of the Lenders, and, to the extent required, obtaining flood insurance for such property, structures and contents prior to such property, structures and contents becoming Collateral. With respect to any Significant Subsidiary which is formed or acquired after the Closing Date or any Subsidiary which becomes a Significant Subsidiary after the Closing Date: (i) with respect to Real Property which is required to be subject to a Mortgage, and any as-extracted minerals or fixtures (as such terms are defined in the Uniform Commercial Code) which are required to be subject to a Mortgage or a Security Agreement, the requirements of this Section 11.13.2 shall be satisfied with respect to Real Property and with respect to fixtures and as extracted collateral if the Loan Parties and their Subsidiaries take all steps within 120 days following the date a Subsidiary becomes a Significant Subsidiary (or such longer period as determined in the Administrative Agent’s sole discretion) to grant a first priority perfected lien and security interest thereon (subject only to Permitted Liens). With respect to each Securitization Subsidiary (including each Securitization Subsidiary which is formed after the Closing Date) the Borrower will, and will cause each other Credit Party to, shall within thirty (30) days following the date such Person becomes a Securitization Subsidiary: (i) cause all of its the issued and outstanding capital stock, partnership interests, member interests or other equity interests of such Securitization Subsidiary that are owned property (subject by the Borrower or another Loan Party to be pledged on a first priority perfected basis to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents Lenders pursuant to the extentPledge Agreements, and within (ii) deliver opinions of legal counsel, with respect to such time period Securitization Subsidiary, including opinions of local counsel in each applicable jurisdiction, as is, such opinions may be reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement Agent and with such opinions to be satisfactory in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder form, scope and substance to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or in its counsel reasonably determines that such pledge would not provide material credit support for the benefit reasonable discretion, and (iii) obtain Uniform Commercial Code, lien, tax, and judgment searches (including searches of the Holders applicable real estate indexes), with the results, form scope and substance of Secured Obligations pursuant such searches to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder satisfactory to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Agent.
Appears in 1 contract
Samples: Credit Agreement (Arch Coal Inc)
Collateral. (a) Subject Where Resources is required to provide Collateral pursuant to this Agreement, such Collateral shall be held by the Applicable REI Party and be in an amount equal to the limitations on property maximum potential liability the Applicable REI Party has under the applicable Remaining Credit Support Arrangement, provided in the event that Resources elects to provide Collateral in the form of treasury bonds or assets acquired after in cases where the Effective Date set forth maximum potential liability is denominated in Section 5.13a currency other than U.S. Dollars, the Borrower willCollateral shall be in an amount reasonably acceptable to REI in excess of the maximum potential liability. In cases where the Remaining Credit Support Arrangement provides for a maximum limit for the Applicable REI Party's liability and there is an open transaction secured by such Remaining Credit Support Arrangement, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) Applicable REI Party's maximum potential liability shall be deemed to be subject at all times such maximum limit. In cases where the Remaining Credit Support Arrangement does not provide for such maximum limit and there is an open transaction secured by such Remaining Credit Support Arrangement, the Applicable REI Party's maximum potential liability shall be deemed to first priority, perfected Liens in favor be the reasonably anticipated exposure of the Administrative Agent for Applicable REI Party at the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are Resources is required to be delivered hereunder until December 31, 2009 or such later date as provide the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective DateCollateral; provided that the Borrower hereby agrees amount of the Collateral shall be reviewed from time to use its best efforts to cause the delivery time and any excess will be returned to, and any shortfalls will be replenished by, Resources within three business days of notice of such Mortgages as soon as reasonably practicable after the Effective Date; (4) excess or shortfall. In cases where there is no vehicle titles for the motor vehicles owned open transaction secured by the Remaining Credit Parties and titled to reflect Support Arrangement (regardless of whether or not such Remaining Credit Support Arrangement provides for a maximum limit for liability of the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5Applicable REI Party) no Mortgages or vehicle titles Resources shall not be required hereunder to provide Collateral if Resources provides an officer's certificate to the extent the Borrower is foregoing fact, together with its written undertaking to take no action, including engaging in compliance further transactions with the Mortgage and Vehicle Title Requirement)beneficiary of the applicable Remaining Credit Support Arrangement, that could increase the Applicable REI Party's exposure under such Remaining Credit Support Arrangement.
Appears in 1 contract
Samples: Reliant Energy Inc
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, The Obligations shall be secured by (i) cause all of its owned property (subject to the exceptions contained herein a perfected first priority lien or security title and in any Collateral Document and excluding the Excluded Assets) security interest to be subject at all times to first priority, perfected Liens in favor of the Administrative held by Agent for the benefit of Lenders in the Holders Mortgaged Properties and certain personal property of Secured Obligations Loan Parties related to secure the Obligations in accordance with Mortgaged Properties, pursuant to the terms and conditions of the Collateral DocumentsSecurity Deeds, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assetsii) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party a perfected first priority security interest to be subject at all times to a first priority, perfected Lien in favor of the Administrative held by Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of Lenders in the Holders of Secured Obligations Leases pursuant to legally validthe Security Deeds and the Assignment of Leases and Rents, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunderin the Mineral Rights Leases pursuant to the Assignment of Mineral Rights Leases, and no Mortgages shall be required hereunder in the Timber Purchase Agreement pursuant to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Collateral Assignment of Timber Purchase Agreement, (iii) a perfected first priority security interest to be held by Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of Lenders in the Holders Pledged Deposit Account and all monies, instruments and investments from time to time held therein, (iv) a perfected first priority pledge of Secured Obligations and security interest in all issued and outstanding Equity Interests held by any Loan Party in another Loan Party or in any Joint Venture pursuant to legally validthe Pledge and Security Agreement, binding provided that in the event a pledge of or security interest in such Equity Interests in any Joint Venture pursuant to the Pledge and enforceable Mortgages; (3) no Mortgages are required Security Agreement is not permitted under the Organizational Documents of the applicable Joint Venture or pursuant to any other agreement, then such security interest shall be limited to an assignment of such Loan Party’s rights to any distributions made or to be delivered hereunder until December 31made by such Joint Venture in favor of Agent for the benefit of Lenders pursuant to the Assignment of Rights to Joint Venture Distributions, 2009 such Equity Interests or rights shall not be included as Collateral, and (v) such later date additional collateral, if any, as the Administrative Agent Loan Parties may agree to grant and Agent for the benefit of Lenders from time to time may accept as security for the Obligations. The Loan Parties agree that all existing and thereafter acquired Timberland and High Value Timberland shall be included in the exercise Mortgaged Properties except for Real Estate distributed as part of its reasonable discretion (it being understood the TEMCO Investment and as otherwise agreed that by Agent. All Borrowing Base Assets other than the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles Mineral Business shall be required hereunder included in the Mortgaged Properties if Borrower elects to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirementsecure all such Borrowing Base Assets pursuant to §9.2(b).
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Forestar Group Inc.)
Collateral. (a) Subject to the limitations The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each Guarantor in all of their accounts, chattel paper, instruments, documents, general intangibles, letter-of-credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, commercial tort claims, real estate and certain other Property, whether now owned or hereafter acquired or arising, and will cause each other Credit Party toall proceeds thereof; provided, however, that: (i) cause all until an Event of its owned property Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on local xxxxx cash accounts maintained by the Borrower and the Guarantors in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected shall not exceed $100,000 in the aggregate and Liens on payroll accounts maintained by the Borrower and the Guarantors need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligations, (ii) until an Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the exceptions contained herein total value of such property at any one time not so perfected shall not exceed $100,000 in the aggregate, and in (iii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens on the Voting Stock of a Foreign Subsidiary shall be limited to 65% of the total outstanding Voting Stock of such Foreign Subsidiary. The Borrower acknowledges and agrees that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, subject in all cases the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingpreceding sentence and to Liens permitted by Section 8.8 hereof, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Collateral. The B Loans will be secured by valid and perfected Liens upon all of the Principal Properties (except the Trinidad Interest) of the Borrower and the Domestic Subsidiaries, whether now owned or hereafter acquired and all proceeds thereof, including a pledge of the stock or other equity interests of the Domestic Subsidiaries, and valid and perfected Liens in all Non-Principal Properties of the Borrower and the Domestic Subsidiaries, including all tangible and intangible property (including deposit accounts) of the Borrower and the Domestic Subsidiaries other than the Principal Properties, and the A Obligations will be secured only by first priority, valid and perfected Liens in all of the Non-Principal Properties (including deposit accounts) of the Borrower and the Domestic Subsidiaries, in each case whether now owned or hereafter acquired and all proceeds thereof, and excluding certain encumbered property; provided, that the Obligations will not be secured by (a) Subject to the limitations on property or assets acquired after the Effective Date set forth Borrower's and its Subsidiaries equity interests in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all Houston Ammonia Terminal, L.P., and (ii) FMCL LLC, (which holds vessel charter rights pertaining to transportation of its owned property offtake from FMCL's facility), (subject to b) the exceptions contained herein and in any Collateral Document and excluding Trinidad Interest or (c) the Excluded Assets) Non Principal Property. The Borrower acknowledges and agrees that the Liens on the Collateral shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents Class to the extentextent described above and shall be valid and perfected first priority Liens subject only to Liens permitted by Section 7.9 hereof pursuant to one or more Security Documents from such Persons, each in form and within such time period as is, reasonably required by substance satisfactory to the Administrative Agent. Notwithstanding , and provided further that the foregoing: (1) no Pledge Agreement Borrower and the Domestic Subsidiaries need not take any steps to perfect a Lien on deposit accounts maintained in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder proximity to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support operations for the benefit purpose of the Holders of Secured Obligations pursuant paying amounts owing (as opposed to legally valid, binding and enforceable Pledge Agreements; (2receiving collections) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the total balance on deposit in such deposit accounts shall not exceed $500,000 except that the Borrower hereby agrees and its Domestic Subsidiaries may exceed such amount by depositing in such deposit accounts amounts sufficient to use its best efforts to cause the delivery cover payroll obligations paid out of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder deposit accounts if such deposits are made not more that two business days prior to the extent the Borrower is in compliance with the Mortgage date payroll and Vehicle Title Requirement)related checks written against such deposit accounts are released.
Appears in 1 contract
Collateral. Payment hereof is secured by one hundred percent (a100%) Subject of the common stock of C.X. Xxxxxxxx Retreading Company, Inc. being purchased by Maker hereunder and including all common or preferred stock or equity instrument of any kind or manner, including but not limited to stock, warrants, options and convertible note, issued by C. X. Xxxxxxxx Retreading Company, Inc. (the “CTR shares”) after the date of this Note as specified in the Stock Purchase Agreement (the “SPA”) signed on this same date. The CTR shares being purchased hereunder have been delivered to the limitations on property or assets acquired after Designated Agent under the Effective Date set forth in Section 5.13, the Borrower will, SPA and will cause each other Credit Party to, (i) cause all remain in the Agent’s possession until payment in full of the Note and notification by Lender or Holder to return the CTR shares to Maker. The Maker shall not authorize or vote its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens shares in favor of the Administrative Agent for the benefit any action that would cause any dilution of the Holders CTR Shares through any common or preferred stock or equity instrument of Secured Obligations any kind or manner, including but not limited to secure stock, warrants, options or convertible note, to be issued by C. X. Xxxxxxxx Retreading Company, Inc. Payment hereof is secured by a Second Deed of Trust, Security Agreement and Financing Statement of even date herewith executed by the Obligations Maker hereof to Mxxxxxxxxx Sxxxxxxxx, PLLC, Trustee, a copy of which is attached hereto as Appendix A (the “Deed of Trust”), secured by the real estate described in accordance said Deed of Trust. The Note is further secured by Maker’s grant of a security interest, secondary to the security interest of First State Bank of Rice, in the following: Refurbished Mxxxx Xx 00X (x 00XX) Xxxx-Xxxxx Shredder complete with the terms following design features and conditions of the Collateral Documents, subject in all cases specifications: Infeed opening: 63"x79"; feed hxxxxx (standard); l50HP hydraulic drive motor; 150HPelectric hydraulic power supply; 20" diameter solid steel rotor; 30 mm alloy steel wear-resistant cutters; Bolt-on cutter blade holders; 20HP hydraulic power supply for deed ram (integral to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock 150HP HPU); discharge screen (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: 5/8" - 3/4"); variable ram speed control (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreementsamperage load proportional); control/MCC Panel; operations/maintenance manuals (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunderand all after acquired equipment all as more fully described in the UCC-1 Financing Statement, and no Mortgages shall be required hereunder attached Appendix B hereto which is based on Exhibit B-1 to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)SPA.
Appears in 1 contract
Samples: Stock Purchase Agreement (Freestone Resources, Inc.)
Collateral. (a) Subject In connection with any Deemed Sale of the CBO-2 Collateral effectuated by means of an actual foreclosure sale where the Collateral Agent successfully "credit bids" for the CBO-2 Collateral, the aggregate amount of such "credit bid" shall be allocated among the unpaid Repo Obligations, the outstanding obligations evidenced by the Series A Notes and the outstanding obligations evidenced by the Series B Notes based upon the amounts of each of such debt obligations outstanding at the date of the Deemed Sale of the CBO-2 Collateral, on the one hand, relative to the limitations total amount of such debt obligations then outstanding, on property the other hand; provided, however, that the amount of the obligations then deemed outstanding on account of the Series A Notes and the Series B Notes shall be reduced by any Proceeds previously actually realized and applied on account of the Series A Notes and the Series B Notes from a disposition of all or part of the Miscellaneous Collateral or, if no such disposition of all or part of the Miscellaneous Collateral has occurred prior to the date of determination of the outstanding debt obligations, by the net book value for such assets acquired after as reflected on the Effective Date set forth books and records of CMI for the most recently concluded reporting period. Upon the allocation of the aggregate obligations "credit bid" by the Collateral Agent in Section 5.13connection with the Deemed Sale of the CBO-2 Collateral, as hereinabove provided, the Borrower willdeficiency claim of each of the Repo Purchaser, the Note A Indenture Trustee and the Note B Indenture Trustee against CMI arising on account of such Deemed Sale shall be the difference, in each case, between the amount of such "credit bid" allocated to the Repo Obligations or the outstanding obligations evidenced by the Series A Notes and the Series B Notes, respectively, on the one hand, and will cause each the unpaid balance of the Repo Obligations and the outstanding obligations evidenced by the Series A Notes and the Series B Notes, respectively, on the other Credit Party tohand, (i) cause all as of its owned property (subject the date of such Deemed Sale. Anything herein to the exceptions contained herein contrary notwithstanding, each of the Note A Indenture Trustee and the Note B Indenture Trustee may elect not to participate in the "credit bid" procedure for a Deemed Sale of the CBO-2 Collateral by written notice to the Repo Purchaser and the Collateral Agent given not later than ten (10) Business Days prior to the date of the actual foreclosure sale of the CBO-2 Collateral, whereupon such Indenture Trustee shall retain its full deficiency claim against CMI on account of the outstanding obligations evidenced by the applicable Notes without regard to the Deemed Sale of the CBO-2 Collateral, shall not have any Collateral Document and excluding beneficial ownership interest in the Excluded Assets) Deemed Sale Entity or the CBO-2 Collateral, shall continue to be subject at obligated to release the CBO-2 Collateral from such Indenture Trustee's security interest therein, as required by Article VI, Section (b)(ii) above, and shall forfeit any and all times rights to first priority, perfected Liens in favor of any Proceeds thereafter realized on the Administrative Agent for the benefit of the Holders of Secured Obligations CBO-2 Collateral to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to which such Indenture Trustee would otherwise be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents entitled pursuant to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) provisions of Article VII hereofVI, Section (b)(ii) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)above.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Criimi Mae Inc)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13The Deeds of Trust, the Borrower willDeed to Secure Debt, the ---------- Assignments of Leases, the Stock Pledge Agreement, the Partnership Assignments, the Assignment Agreement and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens Assigned Agreements create in favor of the Administrative Agent for Lender valid and enforceable liens on and security interests in the benefit properties described therein which secure the payment and performance of the Holders Obligations, including, without limitation, all future Advances pursuant to this Agreement and the Note and all extensions, renewals and other modifications thereof. Upon the filing of Secured Obligations to secure UCC financing statements in the Obligations jurisdictions set forth in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, Schedule 4 attached hereto naming the Borrower will cause as debtor and the Applicable Pledge Percentage of Lender as ---------- secured party covering the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly personal property Collateral owned by the Borrower and the filing of UCC terminations, assignments or any other Credit Party subordinations relating to the UCC financing statements listed on Schedule 4, the liens created by the ---------- Deeds of Trust, the Deed to Secure Debt, the Assignments of Leases, the Partnership Assignment, the Assignment Agreement and the Assigned Agreements shall constitute first priority perfected liens on and security interests in the personal property described therein which shall be subject at superior and prior to the rights of all times third Persons now existing or hereafter arising except for Liens permitted by Sections 8.02(a) through (f). Upon the recording of the Deeds of Trust, the Deed to Secure Debt, the Assignments of Leases and the applicable Assignment Agreements in the office of the recorder of deeds of the counties where the real property is located, there shall be a first priority, priority perfected Lien in favor lien on the real property described therein which shall be superior and prior to the rights of all third Persons now existing or hereafter arising except for the Liens permitted by Sections 8.02(a) through (f). Upon the delivery to the Lender of all of the Administrative Agent stock certificates referred to secure in the Obligations in accordance Stock Pledge Agreement, together with the terms stock transfer powers referred to therein, there shall be a first priority lien on the pledged securities referred to therein which shall be superior and conditions of the Collateral Documents prior to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect rights of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, all third Persons now existing or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)hereafter arising.
Appears in 1 contract
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes, the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuers set forth in Section 5.137.06, and the Notes, the Borrower willNote Guarantees, the Collateral Documents, the Pari Passu Intercreditor Agreement (if any) and will cause each the RPA Intercreditor Agreement, shall be secured by a Lien on the Collateral on an equal basis with the other Credit Party to, (i) cause all of its owned property First Lien Indebtedness and on a senior basis to the Junior Lien Indebtedness (subject to Permitted Liens), as provided in this Indenture, the exceptions contained herein Collateral Documents, the Pari Passu Intercreditor Agreement (if any) and the RPA Intercreditor Agreement to which the Issuers and the Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture (or, in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor case of the Administrative Pari Passu Intercreditor Agreement, at such future date pursuant to the terms of this Indenture) and will be secured by all of the Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture, the Collateral Documents, the Pari Passu Intercreditor Agreement (if any) and the RPA Intercreditor Agreement. The Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents, any Pari Passu Intercreditor Agreement and the RPA Intercreditor Agreement. The Issuers and the Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of itself, all of the Holders of Secured Obligations and the Trustee, in each case pursuant to secure the Obligations in accordance with the terms and conditions of this Indenture, the Collateral Documents, subject in all cases to Permitted Liensthe Pari Passu Intercreditor Agreement (if any) and the RPA Intercreditor Agreement. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).92
Appears in 1 contract
Collateral. (a) Subject All collateral is stored at the Company’s principal place of business located at 0000 Xxx Xxxxxxx Xxxxx Xxxxx 00, Xxxxxxx, XX 00000.. The Company does not own any real estate SCHEDULE B Permitted Liens None 25 SCHEUDULE C Recordings Delaware SCHEDULE D Corporate Status The Company is a Delaware corporation 27 SCHEDULE E Debtor Names None 28 SCHEDULE F Patents None 29 SCHEDULE G Government Account Debtors None 30 SCHEDULE H Ownership Equity in other entities None ANNEX A to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13SECURITY AGREEMENT FORM OF ADDITIONAL DEBTOR JOINDER Security Agreement dated as of October 2, the Borrower will2017 made by R Squared Technologies, Inc. and will cause each other Credit Party toits Subsidiaries party thereto from time to time, (i) cause all of its owned property (subject as Debtors to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for Secured Parties identified therein (the benefit “Security Agreement”) Reference is made to the Security Agreement as defined above; capitalized terms used herein and not otherwise defined herein shall have the meanings given to such terms in, or by reference in, the Security Agreement. The undersigned hereby agrees that upon delivery of this Additional Debtor Xxxxxx to the Secured Parties referred to above, the undersigned shall (a) be an Additional Debtor under the Security Agreement, (b) have all the rights and obligations of the Holders of Secured Obligations Debtors under the Security Agreement as fully and to secure the Obligations in accordance with same extent as if the terms undersigned was an original signatory thereto and conditions (c) be deemed to have made the representations and warranties set forth therein as of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality date of the foregoing, the Borrower will cause the Applicable Pledge Percentage execution and delivery of the issued and outstanding Capital Stock this Additional Debtor Joinder (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder except to the extent such pledge thereunder would representation or warranty specifically refers to an earlier date). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE UNDERSIGNED SPECIFICALLY GRANTS TO THE SECURED PARTIES A SECURITY INTEREST IN THE COLLATERAL AS MORE FULLY SET FORTH IN THE SECURITY AGREEMENT AND ACKNOWLEDGES AND AGREES TO THE WAIVER OF JURY TRIAL PROVISIONS SET FORTH THEREIN. Attached hereto are supplemental and/or replacement Schedules to the Security Agreement, as applicable. Attached hereto is an original Guaranty executed by the undersigned and delivered herewith. An executed copy of this Additional Debtor Joinder shall be prohibited by applicable lawdelivered to the Secured Parties, and the Secured Parties may rely on the matters set forth herein on or after the Administrative Agent date hereof. This Additional Debtor Joinder shall not be modified, amended or its counsel reasonably determines that such pledge would not provide material credit support for terminated without the benefit prior written consent of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Parties.
Appears in 1 contract
Collateral. (a) Subject Except with regard to Liens on Equipment constituting ---------- Fixtures, any reserved rights of the United States government as required under law, Liens upon Trademarks and Trademark Licenses and Patents and Patent Licenses, which Liens, to the limitations extent not otherwise perfected by the filing of financing statements under the Uniform Commercial Code in accordance with the Security Documents, would, or in the case of Trademark Licenses and Patent Licenses may, be perfected upon filing and acceptance thereof in the United States Patent and Trademark Office, Liens on property uncertificated securities, Liens on Collateral the perfection of which requires filings in or assets acquired other actions under the laws of jurisdictions outside of the United States of America, any State, territory or dependency thereof or 118 the District of Columbia, and Liens on Contracts or Accounts on which the United States of America or any department, agency, or instrumentality thereof is the obligor, and except for the claims of creditors of Persons receiving goods included as Collateral for "sale or return" within the meaning of Section 2-326 of the Uniform Commercial Code of the applicable jurisdiction, upon filing of the financing statements delivered to the Administrative Agent by the Borrower on the Closing Date in the jurisdictions listed on Schedule 6.1(j) (which financing statements are in proper form for filing in such jurisdictions) (and the recording of the Borrower Patent Security Agreement and the Borrower Trademark Security Agreement as set forth therein, and the making of filings in any other jurisdiction as may be necessary under any Requirement of Law after the Effective Date set forth in Section 5.13Closing Date) and the delivery to, and continuing possession by, the Borrower willAdministrative Agent of all Instruments, Chattel Paper and Documents a security interest in which is perfected by possession, the Liens created pursuant to each Security Document, when executed and delivered, will cause each other Credit Party toconstitute valid Liens on and, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priorityextent provided therein, perfected Liens security interests in the collateral referred to in such Security Document (but as to the Copyrights and the Copyright Licenses and accounts arising therefrom, only to the extent the Uniform Commercial Code of the relevant jurisdiction, from time to time in effect, is applicable) in favor of the Administrative Collateral Agent for the ratable benefit of the Holders Lenders, which Liens will be prior to all other Liens of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documentsall other Persons, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents except for Liens permitted pursuant to the extentLoan Documents (including, without limitation, those permitted to exist pursuant to subsection 8.3), and within which Liens are enforceable as such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: against all other Persons (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; except (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereofi) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties Trademarks, Trademark Licenses, Patents and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder Patent Licenses, to the extent that the recording of an assignment or other transfer of title thereto to the Collateral Agent in the United States Patent and Trademark Office may be necessary for such enforceability and (ii) with respect to goods only, buyers in the ordinary course of business to the extent provided in Section 9- 307(1) of the Uniform Commercial Code as from time 119 to time in effect in the applicable jurisdiction), except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). Notwithstanding any other provision of this Agreement, capitalized terms which are used in this subsection 5.14 and not defined in this Agreement are so used as defined in the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Security Agreement.
Appears in 1 contract
Samples: Credit Agreement (CDW Holding Corp)
Collateral. (a) Subject The Obligations shall be secured by a perfected first priority security interest in the Collateral. The Borrower shall be entitled to withdraw Collateral in inverse order of the limitations ranking of such Collateral on property or assets acquired the Pledged Collateral List (it being understood that any asset so withdrawn shall be automatically included in the Listed Eligible Assets as the highest ranked asset (and the list shall be adjusted accordingly)) so long as, both immediately before and after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party togiving effect to such withdrawal, (i) cause all no Material Default or Event of its owned property Default shall have occurred and be continuing (subject or shall result therefrom) and (ii) except for any such withdrawal which the Borrower reasonably determines is necessary for compliance with any covenant applicable under the terms of any Indebtedness of the Borrower as in effect on the Closing Date relating to the exceptions contained herein maintenance of “Total Unencumbered Assets” (or any similar concept), the Fixed Charge Coverage Ratio at the time of such withdrawal is at least 1.25 to 1.00. Notwithstanding any other provisions in this Section 2.17, Non-Performing Loan Assets and Other Real Estate Owned Assets that are disregarded in calculating the aggregate Borrowing Base Value as provided in the definition of “Borrowing Base Value” may, so long as no Material Default or Event of Default shall have occurred and be continuing (or shall result therefrom), be withdrawn, at the option of the Borrower, to the extent of any amount so disregarded; provided that at the time of such withdrawal of any such assets, the Joint Lead Arrangers shall have the right, but not the obligation, to rank such assets as Listed Eligible Assets. Notwithstanding any other provisions in this Section 2.17, (x) the Borrower shall be entitled to withdraw Collateral Document in connection with payment or prepayment of such Collateral and excluding (y) the Excluded AssetsBorrower shall be permitted to withdraw such Collateral in connection with sales to third parties or a monetization (that is not a payment or prepayment) (any such monetization or sale, a “Third Party Sale”) provided that in connection with any such Third Party Sale and after giving effect to such Third Party Sale and the prior addition (a “Collateral Addition”) of any replacement Collateral (which replacement Collateral shall comprise the highest ranked Listed Eligible Assets immediately prior to such replacement and the lowest ranked Collateral on the Pledged Collateral List immediately following such replacement), either (I) no Material Default or Event of Default shall have occurred and be continuing or (II) a Material Default or Event of Default shall have occurred and be continuing, but such Third Party Sale is consummated pursuant to a binding commitment entered into at a time that no Material Default or Event of Default had occurred and was continuing or would have resulted therefrom (it being understood that the proceeds of any such transaction described in clause (x) or (y) above shall be paid into the accounts established pursuant to Section 5.8). At such time as any Listed Eligible Assets are required to be subject at all times pledged as Collateral in order to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance comply with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoinghereof, the Borrower will shall (i) cause the Applicable Pledge Percentage a sufficient amount of the issued highest ranked Listed Eligible Assets to be transferred to a Collateral SPV and outstanding Capital Stock (other than Excluded Assetsii) of each Pledge Subsidiary directly owned by the Borrower or take any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period actions as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel the Collateral Trustee may reasonably determines that such pledge would not provide material credit support request for the benefit purposes of fully perfecting or renewing the rights and security interests of the Holders Collateral Trustee, on behalf of Secured Obligations the Banks, with respect to the Collateral. In addition to Collateral withdrawals otherwise permitted pursuant to legally validthis Agreement or any other Loan Document, binding promissory notes and enforceable Pledge Agreements; related transfer documents, if any, constituting part of any Collateral (2and any related collateral) no Mortgages covering real property other than Fee Owned Real Property if requested by the Borrower at any time prior to the commencement of a Foreclosure (as defined in the Collateral Trust Agreement) in respect thereof, shall be required hereunder, and no Mortgages shall be required hereunder released by the Collateral Trustee to the extent such Mortgages are not readily obtainable under relevant custody of the Borrower, the applicable law or if the Administrative Agent Grantor or its counsel reasonably determines that such Mortgage would not provide material credit support agents in escrow pending any enforcement action, exercise of rights or other customary actions in lieu of enforcement or for the benefit purpose of the Holders correction of Secured Obligations pursuant to legally validdefects, binding if any, in each case in respect of any such promissory notes and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being related collateral. It is understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect any Collateral released pursuant to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees foregoing sentence shall remain Collateral except in connection with a withdrawal otherwise permitted pursuant to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages this Agreement or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)any other Loan Document.
Appears in 1 contract
Samples: First Priority Credit Agreement (Istar Financial Inc)
Collateral. The Obligations shall be secured to the extent provided herein and in the Collateral Documents by (a) Subject valid, perfected and enforceable Liens on all right, title, and interest of the Borrower and the Guarantors in all capital stock and other equity interests held by such Person in each of its Domestic Subsidiaries, whether now owned or hereafter formed or acquired, and all proceeds thereof, and (b) valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower and each Guarantor in all personal property, fixtures, and to the limitations on property or assets acquired after the Effective Date set forth extent provided in Section 5.134.3 hereof, the Borrower willreal estate, whether now owned or hereafter acquired or arising, and will cause each other Credit Party toall proceeds thereof; provided, however, that: (i) cause all until an Event of its owned property Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on local xxxxx cash deposit accounts maintained by the Borrower and the Guarantors in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected shall not exceed $1,000,000 in the aggregate and Liens on payroll, withholding tax, or tax trust or fiduciary accounts maintained by the Borrower and the Guarantors need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll liabilities, payroll taxes or other wage and benefit liabilities, (ii) until an Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the exceptions contained herein total value of such property at any one time not so perfected shall not exceed $1,000,000 in the aggregate and in any Collateral Document (iii) until an Event of Default has occurred and excluding is continuing and thereafter until otherwise required by the Excluded Assets) Administrative Agent or the Required Lenders, Liens are not required to be subject granted or perfected on (A) Property of the Borrower and the Guarantors (other than Property which is being pledged pursuant to the Security Agreement) located outside of the United States of America or Property as to which the grant or perfection of a Lien thereon would not be governed by the laws of the United States of America or any State thereof, provided that the aggregate net book value of such Property at all times any one time not so encumbered does not exceed $1,000,000 in the aggregate and (B) goods in transit outside of the United States of America in the ordinary course of business. The Borrower and the Guarantors acknowledge and agree that each Lien on the Collateral shall be granted by the Borrower and the Guarantors to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders holder of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents(or, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited contemplated by applicable lawthe Intercreditor Agreement, or to the Administrative First Lien Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations Parties) and shall be a valid and perfected Lien subject only to Liens permitted by Section 8.8 hereof, in each case pursuant to legally validone or more Collateral Documents from such Persons, binding each in form and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder substance satisfactory to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Agent.
Appears in 1 contract
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, The Obligations shall be secured by (i) cause all of its owned property (subject to the exceptions contained herein a perfected first priority lien or security title and in any Collateral Document and excluding the Excluded Assets) security interest to be subject at all times to first priority, perfected Liens in favor of the Administrative held by Agent for the benefit of Lenders in the Holders Mortgaged Properties and certain personal property of Secured Obligations Loan Parties related to secure the Obligations in accordance with Mortgaged Properties, pursuant to the terms and conditions of the Collateral DocumentsSecurity Deeds, subject (ii) a perfected first priority security interest to be held by Agent for the benefit of Lenders in the Leases pursuant to the Security Deeds and the Assignment of Leases and Rents, in the Mineral Rights Leases pursuant to the Assignment of Mineral Rights Leases, (iii) a perfected first priority security interest to be held by Agent for the benefit of Lenders in the Credo Patents pursuant to the Patent Security Agreement, (iv) a perfected first priority security interest to be held by Agent for the benefit of Lenders in the Pledged Deposit Account and all monies, instruments and investments from time to time held therein, (v) a perfected first priority pledge of and security interest in all cases issued and outstanding Equity Interests held by any Loan Party in another Loan Party or in any Majority-Owned Joint Venture (other than CREDO Exploration Program Ltd. - 1979) pursuant to the Pledge and Security Agreement, provided that in the event a pledge of or security interest in such Equity Interests in any Majority-Owned Joint Venture pursuant to the Pledge and Security Agreement is not permitted under the Organization Documents of the applicable Majority-Owned Joint Venture or pursuant to any other agreement, then such security interest shall be limited to an assignment of such Loan Party’s rights to any distributions made or to be made by such Majority-Owned Joint Venture in favor of Agent for the benefit of Lenders pursuant to the Assignment of Rights to Joint Venture Distributions, provided that in the event a pledge of or security interest in such rights to distributions is not permitted under the Organizational Documents of the applicable Majority-Owned Joint Venture or pursuant to any other agreement, neither such Equity Interests nor any rights to any distributions shall be included as Collateral, (vi) a perfected first priority security interest to be held by Agent for the benefit of Lenders in the SIDR Reimbursements pursuant to the Assignment of SIDR Reimbursements, (vii) the Security Deeds covering Oil & Gas Properties required pursuant to § 5.8(a); and, and (viii) such additional collateral, if any, as the Loan Parties may agree to grant and Agent for the benefit of Lenders from time to time may accept as security for the Obligations; provided, however, it being understood that all security interests described in this §5.1 shall be subject to Permitted Liens. Without limiting The Loan Parties agree that all existing and thereafter acquired Timberland and High Value Timberland shall be included in the generality Mortgaged Properties except for Real Estate distributed as part of the foregoing, TEMCO Investment and as otherwise agreed by Agent. Any Real Estate constituting Entitled Land Under Development must be included in the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party Mortgaged Properties in order to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree included in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Borrowing Base Assets.
Appears in 1 contract
Collateral. As security for all indebtedness of Borrower to Bank in connection with Letters of Credit issued (aor deemed issued) Subject under the Letter of Credit Line, Borrower shall grant to Bank security interests in (i) Borrower’s deposit account *** maintained at Bank (the limitations on property or assets acquired after the Effective Date “U.S. Deposit Account”), Borrower’s multi-currency account accounts as set forth in Section 5.13Schedule A hereto (as said Schedule may be supplemented from time to time) and as maintained at Bank’s Cayman Islands branch (the “Multi-currency Accounts”) and Borrower’s investment account *** maintained at Bank (the “Securities Account”), in each case including renewals thereof, together with all proceeds thereof. All of the Borrower will, foregoing shall be evidenced by and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein terms of, with respect to the U.S. Deposit Account and in any Collateral Document Multi-currency Accounts, an Amended and excluding Restated Security Agreement (Deposit Accounts) dated as of April 17, 2009, and with respect to the Excluded AssetsSecurities Account, a Security Agreement (Securities Account) dated as of March 18, 2008, a Securities Account Control Agreement dated March 18, 2008, and, with respect to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Addendum. In addition to the foregoing collateral, Borrower will shall, on or before April 30, 2009, cause the Applicable Pledge Percentage SunPower Corporation, Systems to pledge to Bank 60% of the issued and outstanding Capital Stock stock in SunPower Systems SA (other than Excluded Assets“SPSA”) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times secure up to a first priority, perfected Lien in favor $50,000,000 of the Administrative Agent obligations of Borrower hereunder, and, in connection therewith, shall by said date, deliver to secure Bank such documents as Bank may require *** CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. to evidence such pledge, to include, without limitation, a legal opinion from Swiss counsel in form and substance acceptable to Bank. Borrower shall ensure that in the Obligations event of issuance of additional stock in accordance SPSA, 60% of such additional stock is promptly pledged to Bank.” Borrower shall pay to Bank immediately upon demand the full amount of all charges, costs and expenses (to include fees paid to third parties and all allocated costs of Bank personnel), expended or incurred by Bank in connection with the terms and conditions any of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)foregoing security.”
Appears in 1 contract
Samples: Credit Agreement (Sunpower Corp)
Collateral. Payment of the Obligations will be secured by (ai) Subject a first ---------- perfected security interest in 100% of the Capital Stock of the Subsidiaries of the Borrower and 100% of the Capital Stock of the Borrower, (ii) subject to Permitted Liens and Section 6.15 hereof, a first perfected security interest in all of the limitations existing and future accounts (including without limitation, the Tenant Leases), equipment, inventory and general intangibles (including all existing and future Tenant Leases, and excluding any Interest Rate Protection Agreement to which any Lender is a party, motor vehicles, bank accounts, intellectual property and chattel paper) of the Borrower and its Subsidiaries, (iii) Guaranties of the Obligations by each Guarantor, (iv) in accordance with Section 6.15 hereof, deeds of trust and/or mortgages on all real property owned by the Borrower and each Subsidiary of the Borrower and (v) certain pre-existing leasehold deeds of trust and/or mortgages on Borrower's leasehold interest under certain Ground Leases (collectively, together with all other Properties or assets acquired after of the Effective Date set forth in Section 5.13Borrower, Subsidiaries and other Persons securing the Obligations from time to time, the "Collateral"). The Borrower agrees that it will, and will cause each other Credit Party its Subsidiaries and the Parent to, (i) execute and deliver, or cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priorityexecuted and delivered, perfected Liens in favor of such documents as the Administrative Agent may from time to time reasonably request to create and perfect a first Lien for the benefit of the Holders of Secured Obligations to secure Administrative Agent and the Obligations Lenders in accordance with the terms and conditions of the Collateral DocumentsCollateral, subject in all cases to Permitted Liens. Without limiting the generality of provided that, notwithstanding the foregoing, the Borrower will cause the Applicable Pledge Percentage is not obligated to grant or perfect any leasehold deed of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower trust or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)leasehold mortgage.
Appears in 1 contract
Collateral. (a) Subject Borrower shall not take any action (nor permit or consent to the limitations on property taking of any action) which might reasonably be anticipated to impair the value of the Collateral or assets acquired after any of the Effective Date set forth rights of Agent or Lenders in Section 5.13, the Collateral. Borrower will, and will cause each other Credit Party to, shall not (i) cause modify or amend any of the Pledged Documents without Agent's prior written consent except that Borrower shall be permitted to modify up to (1) 15% of the Notes Receivable which are to be pledged to Agent by reducing the interest rate charged and/or (2) 20% of the Notes Receivable which are to be pledged to Agent by extending the term of the Notes Receivable beyond 84 months so long as (a) no Financed Notes Receivable shall have been modified more than two times; (b) all Financed Notes Receivable have a weighted average interest rate of its owned property at least 13.75%; (c) no term exceeds 120 months; (d) no more than 20% of all Financed Notes Receivable have a term exceeding 84 months; (e) at such time as 10% of the Financed Notes Receivable constitute Notes Receivable which have been modified as permitted hereunder any additional modified Notes Receivable to be pledged to Agent shall be subject to the exceptions contained herein and in any Collateral Document and excluding further requirement that the Excluded Assets) Purchasers under such modified Notes Receivable to be subject at all times pledged to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; have made two (2) timely and consecutive monthly payments; (f) no Mortgages covering real property other than Fee Owned Real Property additional modified Notes Receivable shall be required hereunder, and no Mortgages shall be required hereunder pledged to Agent after the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit expiration of the Holders Revolving Period except in replacement of Secured Obligations pursuant to legally valid, binding and enforceable Mortgagesa modified Financed Note Receivable which has become ineligible; (3g) no Mortgages are required to unmodified Financed Note Receivable which becomes ineligible may be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute replaced with a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholdermodified Note Receivable; and (5h) no Mortgages or vehicle titles there shall be required hereunder no limit on assumptions of Notes Receivable provided the purchaser has made a 10% down payment, or (ii) grant extensions of time for the payment of, compromise for less than the full face value, release in whole or in part any Purchaser liable for the payment of, or allow any credit whatsoever except for the amount of cash to be paid upon, any Collateral or any instrument or document representing the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Collateral.
Appears in 1 contract
Samples: Loan and Security Agreement (Silverleaf Resorts Inc)
Collateral. If an Event of Default has occurred and is continuing, Lender shall have, in addition to all other rights of Lender, the rights and remedies of a secured party under the UCC. At any time when an Event of Default is in existence: (ai) Subject Lender may notify Account Debtors to make payment directly to Lender or to such address as Lender may specify, and enforce, settle or adjust Accounts, General Intangibles or Chattel Paper with Account Debtors or obligors thereon for amounts and upon terms which Lender considers appropriate, and in such case, Lender will credit the Obligations with only the net amounts received by Lender in payment thereof after deducting all Lender Expenses incurred or expended in connection therewith; (ii) Lender may take possession of the Collateral and keep it on Credit Parties’ or Guarantor’s premises or remove all or any part of it to another location selected by Lender; (iii) on request by Lender, Credit Parties and Guarantor will, at Credit Parties’ and Guarantor’s cost, assemble the Collateral and make it available to Lender at a place reasonably convenient to Lender; and (iv) Lender may, to the limitations fullest extent permitted by Applicable Law, sell or otherwise dispose of any Collateral at public or private sales, for cash, upon credit or otherwise, at such prices and upon such terms as Lender deems appropriate. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on property a recognized market, Lender will give the appropriate Credit Party or assets acquired Guarantor reasonable notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition thereof is to be made. For this purpose, it is agreed that at least ten (10) days’ notice of the Effective Date time of sale or other intended disposition of the Collateral delivered in accordance with Section 13.6 shall be deemed to be reasonable notice in conformity with the UCC. Lender may adjourn or otherwise reschedule any public sale by announcement at the time and place specified in the notice of such public sale, and such sale may be made at the time and place as so announced without necessity of further notice. Lender shall not be obligated to sell or dispose of any Collateral, notwithstanding any prior notice of intended disposition. If any Collateral is sold on terms other than payment in full at the time of sale, no credit shall be given in reduction of the Obligations until Lender receives payment in cash, and if any such buyer defaults in payment, Lender may resell the Collateral without further notice to Credit Parties and Guarantor. In the event Lender seeks to take possession of all or any portion of the Collateral by judicial process, each Credit Party and Guarantor waives the posting of any bond, surety or security with respect thereto which might otherwise be required. Each Credit Party and Guarantor agrees that Lender has no obligation to preserve rights to the Collateral or marshal any Collateral for the benefit of any Person. Lender is hereby granted a license or other right to use, without charge, each Credit Party’s and Guarantor’s Proprietary Rights in completing production of, advertising or selling any Collateral, and each Credit Party’s and Guarantor’s rights under all licenses shall inure to Lender’s benefit for such purpose. The proceeds of any sale or disposition of Collateral shall be applied to the Obligations as set forth in Section 5.13, the Borrower will, 4.7. The rights and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor remedies of the Administrative Agent for Lender under this Agreement and the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Loan Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to cumulative. The Lender shall have all other rights and remedies not inconsistent herewith as provided under the extent such pledge thereunder would be prohibited by applicable lawUCC, other Applicable Law or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)equity.
Appears in 1 contract
Collateral. As security for all indebtedness of Borrower to Bank subject hereto, Borrower hereby grants to Bank security interests of first priority in the following (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13hereafter, the Borrower will, and will cause each other Credit Party to, "Collateral"): (i) cause Borrower's Market Rate account #7735-113990 maintained at Bank, or any replacement or substitution therefor, including any account resulting from a renumbering or other administrative re-identification thereof ("WFB Market Rate Account"); (ii) Borrower's Xxxxx Capital Management account #00000000 maintained at Bank; and (iii) all accounts receivable and other rights to payment, general intangibles, equipment and all other personal property more particularly described in the Security Agreements (as defined below) and all proceeds of its owned property (the foregoing. All of the foregoing shall be evidenced by and subject to the exceptions contained herein terms of such security agreements, financing statements, deeds of trust and other documents as Bank shall reasonably require, all in any Collateral Document form and excluding substance satisfactory to Bank, including, without limitation, the Excluded Assetsfollowing security agreements: (i) that certain Continuing Security Agreement: Rights to be subject at all times to first priorityPayment, perfected Liens dated as of the date hereof, and executed by Borrower in favor of the Administrative Agent for the benefit Bank ("Rights to Payment Security Agreement"); (ii) that certain Security Agreement: Equipment, dated as of the Holders of Secured Obligations to secure the Obligations in accordance with the terms date hereof, and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the executed by Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions Bank ("Equipment Security Agreement"); (iii) that certain Security Agreement: Securities Account, dated as of the Collateral Documents to the extentdate hereof, and within such time period as is, reasonably required executed by the Administrative Agent. Notwithstanding the foregoing: Borrower in favor of Bank (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder"Securities Account Security Agreement"); and (5iv) no Mortgages or vehicle titles shall be required hereunder that certain Security Agreement: Specific Rights to Payment, dated as of the extent the date hereof, and executed by Borrower is in compliance favor of Bank ("Specific Rights to Payment Security Agreement"; collectively with the Mortgage Rights to Payment Security Agreement, the Equipment Security Agreement and Vehicle Title Requirementthe Securities Account Security Agreement, the "Security Agreements"). Borrower shall reimburse Bank immediately upon demand for all costs and expenses incurred by Bank in connection with any of the foregoing security, including without limitation, filing and recording fees and costs of appraisals, audits and title insurance.
Appears in 1 contract
Samples: Credit Agreement (Corio Inc)
Collateral. To secure the prompt repayment of all Term Loans and all other obligations and amounts due in connection with all Term Notes (the “Payments”) and all other obligations of Borrower to Lender, whether now existing or hereafter arising (collectively, the “Indebtedness”), Borrower grants to Lender a security interest in all right, title and interest of Borrower, whether now existing or hereafter acquired or arising, in and to the following (hereinafter, the “Collateral”): (a) Subject all of the Goods (as defined in the UCC, “Goods”) or other property described in each Term Note as “collateral” or otherwise; (b) all additions, accessories, accessions, attachments, substitutions, renewals, replacements and improvements to the limitations on property or assets acquired after the Effective Date set forth described in Section 5.13, the Borrower will, subsection (a); and will cause each other Credit Party to, (ic) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality proceeds of the foregoing, including proceeds in the form of Goods, Accounts, Chattel Paper, documents, Instruments, General Intangibles, Investment Property, Deposit Accounts, Letter of Credit Rights, Supporting Obligations, and insurance (as such terms are defined in the UCC). Until all Indebtedness has been paid in full, Lenxxx’x security interest in the Collateral shall remain in full force and effect. Borrower will cause covenants to keep the Applicable Pledge Percentage Collateral free and clear of all liens and encumbrances, except for Lenxxx’x security interest therein. Borrower authorizes Lender to insert and/or correct serial numbers, vehicle identification numbers and any other relevant information which identifies the Collateral when such information becomes available to Lender. Borrower shall provide Lender with a revised schedule to the Term Note or other documentation acceptable to Lender in the event of any changes to, or corrections in the description of, the Collateral. Borrower hereby covenants and agrees that: (i) any and all letters of credit provided by any vendor or supplier of Goods and or other items of Collateral the purchase price for which Lenxxx xxs paid or reimbursed Borrower any portion thereof (each a “Letter of Credit”) shall constitute Supporting Obligations, and all of Borrower’s rights and remedies under, and the proceeds of, each Letter of credit shall constitute Collateral hereunder; (ii) Borrower shall provide Lender with a true, correct and complete copy of each Letter of Credit; (iii) Borrower shall not pledge, assign or otherwise transfer any right, title or interest in any Letter of Credit so long as any portion of the issued and outstanding Capital Stock Indebtedness remains unsatisfied; (other than Excluded Assetsiv) upon the occurrence of an Event of Default or if Borrower suffers a material adverse change in Borrower’s financial condition, operations or ownership, as reasonably determined by Lender, upon Lender’s request Borrower shall provide Lender with the sole original of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor Letter of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholderCredit; and (5v) no Mortgages or vehicle titles shall provide Lender with prior written notice of Borxxxxx’x intention to draw upon a Letter of Credit and cause the proceeds of any such draw to be required hereunder used for the payment of amounts under the applicable Progress Payment Addendum to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Master Agreement and/or Term Note.
Appears in 1 contract
Samples: Master Loan and Security Agreement (Ampco Pittsburgh Corp)
Collateral. The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by (a) Subject to the limitations valid, perfected and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each Subsidiary in all capital stock and other equity interests held by such Person in each of its Subsidiaries, whether now owned or hereafter formed or acquired, and will cause all proceeds thereof, and (b) valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower and each Subsidiary in all personal property, fixtures, and real estate (other Credit Party tothan leases of retail stores), whether now owned or hereafter acquired or arising, and all proceeds thereof; provided, however, that: (i) cause all until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, (x) Liens on local deposit accounts maintained by the Borrower and its owned property Subsidiaries in proximity to their operations need not be perfected provided that any funds held in such deposit accounts are transferred to an account maintained by the Borrower with the Administrative Agent by the close of each Business Day and (y) Liens on payroll accounts maintained by the Borrower and its Subsidiaries need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligations, (ii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the exceptions contained herein total value of such property at any one time not so perfected shall not exceed $500,000 in the aggregate, (iii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens on the capital stock or other equity interests of a Foreign Subsidiary which, if granted, would cause a material adverse effect on the Borrower's federal income tax liability shall be limited to 66% of the total outstanding Voting Stock of such Foreign Subsidiary, and in (iv) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens need not be granted on the assets of a Foreign Subsidiary which, if granted, would cause a material adverse effect on the Borrower's federal income tax liability. The Borrower acknowledges and agrees that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holder of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoingObligations, the Borrower will cause Hedging Liability, and the Applicable Pledge Percentage of the issued Funds Transfer and outstanding Capital Stock (other than Excluded Assets) of Deposit Account Liability and shall be valid and perfected first priority Liens subject only to Liens permitted by Section 8.8 hereof, in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Credit Agreement (Rent Way Inc)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the The Borrower willwill cause, and will cause each other Credit Party toto cause, (i) cause all of its owned property Property (subject to but only, in the exceptions contained herein and in any Collateral Document and excluding case of real Property, the Excluded AssetsMortgaged Properties) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases any case to Permitted LiensLiens permitted by Section 6.15 hereof. Without limiting the generality of the foregoing, the Borrower will (i) cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) equity interests of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Secured Obligations in accordance with the terms and conditions of the Collateral Documents or such other security documents as the Administrative Agent shall reasonably request and (ii) will, and will cause each Guarantor to, deliver Mortgages, Mortgage Instruments and deposit account control agreements or blocked account agreements with respect to the Mortgaged Properties, and deposit accounts maintained, by the Borrower or such Guarantor to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: , (1) no Pledge Agreement pledge agreement in respect of the Capital Stock equity interests of any Pledge a Foreign Subsidiary shall be required hereunder to the extent such pledge thereunder would be is prohibited by applicable law, or the Administrative Agent law or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; pledge agreements and (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunderamendments or supplements to such Mortgages, Mortgage Instruments, control agreements, blocked account agreements and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages pledge agreements are required to be delivered hereunder until December 31, 2009 2005 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion after consultation with the Lenders (it being understood and agreed that the failure to deliver such Mortgages amendments and supplements by the December 31, 2005 or such later date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereofSection 7.3) with respect to (a) the Fee Owned Real Property owned by the Credit Parties Mortgaged Properties on the Effective DateClosing Date in the case of such amendments and supplements and (b) the pledge of the equity interests in each Foreign Subsidiary in the case of such pledge agreements; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages amendments, supplements and pledge agreements as soon as reasonably practicable after the Effective Closing Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Credit Agreement (Res Care Inc /Ky/)
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes, the Intermediate Holdings Guarantee and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes, the Intermediate Holdings Guarantee and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuer set forth in Section 5.13, the Borrower will7.07, and will cause each other Credit Party tothe Notes, (i) cause all of its owned property Intermediate Holdings Guarantee and the Note Guarantees and the Intercreditor Agreement and the Collateral Documents, shall be secured by Lien on the Collateral on a junior basis to the First Priority Lien Obligations and on a senior basis to the Second Priority Lien Obligations (subject to Permitted Liens), as provided in this Indenture, the exceptions contained herein Collateral Documents and in any Collateral Document the Intercreditor Agreements to which the Issuer, Intermediate Holdings and excluding the Excluded Assets) to Note Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be subject at secured by all times to first priority, perfected Liens in favor of the Administrative Agent Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture, the Collateral Documents and the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints The Bank of New York Mellon Trust Company, N.A. as the initial Collateral Agent and the Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Issuer, Intermediate Holdings and the Note Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders of Secured Obligations and the Trustee, in each case pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to and the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Intercreditor Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Indenture (Realogy Corp)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, The Company and will cause each other Credit Loan Party to, with an interest in the Four Seasons Macao Overall Project or the Site for such Project: (i) cause shall have executed (1) a Mortgage covering its interests in such Project and Site (including, without limitation, a Mortgage covering the interest of VML in the “air parcel” and “horizontal property” comprised in such Project and Site), (2) a Land Security Assignment granting the Collateral Agent a first priority security interest over its interest in the Land Concession Contract relating to such Project, (3) a Power of Attorney in respect of such Land Concession Contract and Site (including, without limitation, a supplemental Power of Attorney executed by VML in respect of the Mortgage covering its interest in the “air parcel” and “horizontal property” comprised in such Project and Site), and (4) all other Collateral Documents reasonably requested by the Bank Agent or necessary to grant the Secured Parties a perfected, first priority security interest on all assets of its owned property the Company and the Loan Parties (including, without limitation, all contractual arrangements entered into by the Company or any Loan Party ) relating to such Project, other than Excluded Collateral, and subject to the exceptions contained herein rights and in any Collateral Document priorities of Permitted Liens as may be permitted under the Credit Agreement and excluding the Excluded Assetsunless perfection of such security interest is not required under Section 4.11(a), (b) to be subject at all times to first priority, perfected Liens in favor and (c) of the Administrative Security Agreement or the applicable Macau Security Document (in each case, in form and substance reasonably satisfactory to the Disbursement Agent for and the benefit Bank Agent (in consultation with the Construction Consultant)); (ii) shall have delivered to each Consent counterparty a notice of the Holders of Secured Obligations to secure security interest being granted in the Obligations applicable Material Contract (provided that such notice shall not be required if such notice is contained in accordance with such Consent and the terms of such Consent are sufficient under Macau law to perfect such security interest without any additional notice to the Consent counterparty); and conditions (iii) shall have delivered favorable opinions of counsel in form and substance reasonably acceptable to the Bank Agent substantially similar to the opinions delivered on the Closing Date pursuant to Section 4.1K of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to Company and such other Loan Parties, such Project and the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Collateral Documents.
Appears in 1 contract
Collateral. (a) Subject Collateral for a loan made by Lender to Borrower shall consist of cas, or if acceptable to Lender, cash and/or securities issued or guaranteed by the limitations on property United States government or assets acquired after the Effective Date set forth its agencies or instrumentalities in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject an amount equal to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor least 105% of the Administrative Agent for the benefit market value of the Holders Securities. (The amount of Secured Obligations any such cash or other collateral plus the aggregate of all additional amounts deposited by Borrower with Lender pursuant to secure paragraph 4 hereof plus amounts received on investments made by Lender pursuant to paragraph 7 hereof and less the Obligations in accordance with aggregate of all amounts released by Lender pursuant to paragraph 4 hereof is called the terms and conditions "Collateral"). The market value of the Securities (including Debt Securities, as defined below) and of any securities accepted by Lender as Collateral Documents, subject in all cases to Permitted Liens. Without limiting shall be determined on the generality basis of the foregoinglast reported sales prices on the principal securities exchange on which the Securities or such securities accepted as Collateral are traded or, if not so traded, as reasonably determined by Lender. However, if the Borrower will cause the Applicable Pledge Percentage Securities are obligations of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower Specified Country government or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor its agencies or are debt obligations of the Administrative Agent Specified Country corporations, including bonds, debentures, notes, certificates or other evidence of indebtedness ("Debt Securities"), Borrower shall deliver Collateral in an amount equal to secure the Obligations in accordance with the terms and conditions 105% of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect market value of the Capital Stock Debt Securities plus the Barclays Global Investors 45 Fremont Street Xxx Xxxxxxxxx, XX 00000 Xxxx: X.O. Box 7101 San Fraxxxxxx, XX 00000-00000. xxxxxxxx xxxxxxx xx xxxx Xxxx Xxxxxxxxxx. Xxx Xxxxxxxxxl shall secure all obligations of any Pledge Subsidiary shall be required hereunder Borrower to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required Lender hereunder, and no Mortgages Lender, in addition to all its other rights with respect thereto under this Agreement shall be required hereunder to have a continuing security interest in and lien upon, or title to, the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit Collateral and shall have right of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) set-off with respect to all Collateral as to all obligations of Borrower to Lender whether arising under this Agreement or otherwise. Borrower represents and warrants that it has the Fee Owned Real Property owned by unqualified right to sell, transfer, assign or pledge the Credit Parties on the Effective Date; provided collateral which will become Collateral and that the Borrower hereby agrees such collateral, upon delivery to use its best efforts to cause the delivery Lender, will be free of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages any lien, claim or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)encumbrance.
Appears in 1 contract
Samples: Letter Agreement (Ishares Trust)
Collateral. The respective liens and security interests granted to Collateral Agent (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders Secured Parties) pursuant to the Collateral Documents (a) constitute as to personal property included in the Collateral a valid security interest and (b) constitute as to the Mortgaged Property included in the Collateral a valid lien and security interest in the Mortgaged Property, in each case to the extent contemplated by the Collateral Documents. The security interest granted to Collateral Agent (for the benefit of the Secured Obligations Parties) pursuant to secure the Obligations Collateral Documents in accordance the Collateral consisting of personal property will be perfected (i) with respect to any property that can be perfected by filing, upon the terms filing of financing statements in the filing offices identified in Exhibit D-6, (ii) with respect to any property that can be perfected by control, upon execution of the Control Agreement and conditions the Depositary Agreement, and (iii) with respect to any property (if any) that can be perfected by possession, upon Collateral Agent receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or otherwise as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of mortgage, lien, security interests, encumbrance, assignment or otherwise, except (i) Title Exceptions and Permitted Liens described in clauses (a) and (e) of the definition of "Permitted Liens," and (ii) to the extent required by Governmental Rule, those matters described in clauses (b), (c) and (g) of the definition of "Permitted Liens." Except to the extent possession of portions of the Collateral is required for perfection, all such action as is necessary has been taken (or will be taken immediately after the Closing Date) to establish and perfect Collateral Agent's rights in and to the Collateral in existence on such date to the extent Collateral Agent's security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action. No filing, recordation, re-filing or re-recording other than those listed on Exhibit D-6 hereto is necessary to perfect and maintain the perfection of the interest, title or Liens of the Collateral Documents, subject in and on the Closing Date all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower such filings or recordings will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder have been made to the extent such pledge thereunder would Collateral Agent's security interest can be prohibited perfected by applicable lawfiling. Borrower has properly delivered or caused to be delivered, or the Administrative provided control, to Collateral Agent or its counsel reasonably determines Depositary Agent all Collateral that such pledge would not provide material credit support for the benefit permits perfection of the Holders of Secured Obligations pursuant to legally valid, binding Lien and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder security interest described above by possession or control to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages contemplated by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Collateral Documents.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth below in Section 5.13this section and the Limited Conditionality Provision, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor obligations of the Administrative Agent for Borrower and the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock Guarantors (other than Excluded AssetsParent) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock Bridge Facility will be secured by: (a) a perfected first-priority pledge of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit all of the Holders of Secured Obligations pursuant to legally valid, binding equity interests issued by each Guarantor (other than Parent) and enforceable Pledge Agreements; (2b) no Mortgages covering a perfected first-priority security interest in substantially all real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders Loan Parties and the net cash proceeds from dispositions of Secured Obligations pursuant to legally validsuch real property, binding and enforceable Mortgages; (3) no Mortgages are required to be whether or not mortgages covering such real property have been executed, delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion and/or recorded (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately no control agreements will be required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to any such Collateral) (the Fee Owned Real Property owned by items described in clauses (a) and (b) above, but excluding the Excluded Assets (as defined below), collectively, the “Collateral”), subject to certain liens to be agreed. For the avoidance of doubt, (x) the Collateral shall include, without limitation, all real property assets of the Loan Parties set forth in Exhibit E hereto unless a pledge of such real property assets to secure the Bridge Facility is, as of the date hereof, prohibited under that certain Amended and Restated Credit Parties Agreement, dated as of December 2, 2014, among, inter alios, American Realty Capital Retail Operating Partnership, L.P., as borrower, and BMO Hxxxxx Bank N.A., as administrative agent (as in effect on the Effective Date; provided that date hereof), but only for so long as such prohibition is applicable, (all such real property assets not subject to any such prohibition, collectively, the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4“Bridge Facility Properties”) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5y) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower mortgage of such real property or pledge of the equity interests issued by the owner of such real property is required under the terms of any property-level financing, the proceeds of which are used to reduce commitments or prepay Bridge Loans in compliance accordance with clause (y) under the heading “Mandatory Prepayments and Commitment Reductions” above, such real property and/or equity interests, as the case may be, shall be automatically released from the security interest anticipated hereby concurrent with the Mortgage consummation of such financing, so long as, after giving pro forma effect to any such reduction of commitments and/or prepayment of Bridge Loans, as the case may be, and Vehicle Title Requirementrelease of such real property and/or equity interests, as the case may be, the ratio of (i) the aggregate Bridge Commitments or Bridge Loans, as applicable, outstanding at such time to (b) the aggregate appraised value of the Bridge Facility Properties (net of the aggregate amount of any indebtedness or other amounts secured by encumbrances thereon (other than the Bridge Loans)) (as determined by Financial Institutions Reform, Recovery, and Enforcement Act of 1989 compliant appraisals for such Bridge Facility Properties dated as of a recent date (“FIRREA-Compliant Appraisals”)) for which FIRREA-Compliant Appraisals have been delivered is no greater than 0.50 to 1.00. Notwithstanding anything to the contrary contained herein (but subject to the last sentence of the immediately preceding paragraph), the Collateral shall exclude the following: (i) to the extent requiring the consent of one or more third parties (that are not a Loan Party or any direct or indirect parent thereof) or prohibited by the terms of any applicable organizational documents, equity interests in any person other than wholly-owned subsidiaries (but only for so long as such prohibition is applicable and to the extent not entered into in contemplation hereof), (ii) any property subject to a purchase money security interest or similar arrangement not prohibited by the Bridge Documentation to the extent that a grant of a security interest therein would require the consent of a third party that are not a Loan Party or any direct or indirect parent or subsidiary thereof (unless such consent has been received), violate or invalidate such lease, license, contract, agreement, document or purchase money arrangement or create a right of termination in favor of any other party thereto (other than a Loan Party or any parent or subsidiary thereof) after giving effect to the applicable anti-assignment provisions of the UCC, (iii) assets of any subsidiary that are prohibited by any permitted contractual obligation binding on such asset that is existing on the Delayed Draw Closing Date (or, if later, the date of acquisition of such asset) from being pledged to secure the Bridge Facility, or such pledge would trigger termination pursuant to any “change of control” or similar provision under such contract, or which would require governmental (including regulatory) consent, approval, license or authorization to pledge such assets, unless such consent, approval, license or authorization has been received, (iv) assets the pledging of which would have a material adverse tax consequence for the Borrower or its beneficial owners, as may reasonably be determined by the Borrower in good faith and (v) assets in circumstances where the Initial Lenders and the Borrower reasonably agree that the cost, burden or consequences of obtaining or perfecting a security interest in such assets is excessive in relation to the practical benefit afforded thereby (the foregoing described in clauses (i) through (v) are, collectively, “Excluded Assets”). The Loan Parties shall not be required to obtain third party acknowledgements or consent in support of the creation, perfection or enforcement of security interests in the Collateral.
Appears in 1 contract
Samples: Advisory Agreement (American Realty Capital - Retail Centers of America, Inc.)
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes and the Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuer set forth in Section 5.137.6, and the Notes, the Borrower willGuarantees and the Security Documents, shall be secured by a Lien on the Fixed Asset Collateral on a first-priority basis and secured by a Lien on the Current Asset Collateral on a second-priority basis, in each case subject to Permitted Liens, as provided in this Indenture and the Security Documents to which the Issuer and the Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture and will cause each other Credit Party to, (i) cause be secured by all of its owned property (subject the Collateral pledged pursuant to the exceptions contained herein Security Documents hereafter delivered as required or permitted by this Indenture and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first prioritySecurity Documents. The Issuer, perfected Liens in favor of the Administrative Agent for the benefit of the Holders Holders, hereby appoints UMB Bank, N.A., as the initial Collateral Agent and the Collateral Agent is hereby authorized and directed to execute and deliver the Security Documents. Each Holder by its acceptance of Secured Obligations any Notes and the Guarantees thereof, irrevocably consents and agrees to secure such appointment. Notwithstanding any provision to the Obligations contrary contained elsewhere in accordance with this Indenture or the terms and conditions other Note Documents, the duties of the Collateral Agent shall be ministerial and administrative in nature, and the Collateral Agent shall not have any duties or responsibilities, except those expressly set forth herein and in the other Note Documents to which the Collateral Agent is a party, nor shall the Collateral Agent have or be deemed to have any trust or other fiduciary relationship with the Trustee, any Holder, the Issuer or any Guarantor, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Indenture or the other Note Documents, subject in all cases to Permitted Liensor otherwise exist, against the Collateral Agent. Without limiting the generality of the foregoingforegoing sentence, the Borrower will cause the Applicable Pledge Percentage use of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party term “agent” in this Indenture with reference to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents Agent is not intended to the extentconnote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead, such term is used merely as a matter of market custom, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder is intended to the extent such pledge thereunder would be prohibited by applicable law, create or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)only an administrative relationship between independent contracting parties.
Appears in 1 contract
Samples: Indenture (Vertiv Holdings Co)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31February 20, 2009 2012 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; and (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder Liens or Mortgages on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles any Fee Owned Real Property shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Collateral. (a) Subject Each Person that becomes a Guarantor after the Issue Date shall, subject to any applicable limitation in this Indenture and any Security Document, also become a party to the limitations on property or assets acquired after applicable Security Documents and, within the Effective Date time periods set forth in Section 5.13Section 4.15(b) and the applicable Security Documents, shall as promptly as practicable execute and deliver such security instruments, financing statements, mortgages, deeds of trust (in substantially the Borrower will, same form as those executed and will cause each other Credit Party to, (i) cause all of its owned property (subject delivered with respect to the exceptions contained herein and Collateral on the Issue Date or on the date first delivered in any the case of Collateral Document and excluding that the Excluded Assets) to Indenture provides may be subject at all times to first priority, perfected Liens in favor of delivered after the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock Issue Date (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period substantially in the form (as is, reasonably required determined by the Administrative Agent. Notwithstanding Company in good faith) delivered on the foregoing: Issue Date or the date first delivered, as applicable (1) but no Pledge Agreement greater scope))), with such adjustments as the Company may determine in respect good faith are appropriate to reflect applicable law and the terms or requirements of the Capital Stock Credit Agreement or the First Lien Security Documents, as may be necessary to vest in the Collateral Trustee a perfected second-priority security interest (subject to Liens permitted by Section 4.06 and Permitted Liens) in properties and assets that constitute Collateral, as security for such Guarantor’s Note Guaranty and as may be necessary in order to have such property or asset added to the Collateral as required under, and subject to the limitations set forth in, the Security Documents in order to satisfy the Collateral Vessel Requirements, and thereupon all provisions of any Pledge Subsidiary this Indenture relating to the Collateral shall be required hereunder deemed to relate to such properties and assets to the same extent such pledge thereunder would be prohibited by applicable lawand with the same force and effect; provided that for as long as the Senior Secured Credit Facility Obligations are outstanding, or the Administrative Agent or its counsel reasonably determines that such pledge would Grantors will not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent take any actions to create or perfect any liens unless such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages actions are required to be delivered hereunder until December 31, 2009 create or perfect liens securing such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Senior Secured Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Facility Obligations.
Appears in 1 contract
Samples: Indenture (Valaris LTD)
Collateral. Each Loan Party shall at all times keep the Collateral and all its other property and assets free and clear from any Liens whatsoever (except for Permitted Liens), and shall give Agent prompt written notice when such Loan Party knows of any legal process adversely affecting such, or any Liens thereon, provided however, that the Collateral and such other property and assets may be subject to Permitted Liens. No Loan Party shall agree with any Person other than Agent or Lender not to encumber its property other than (i) in connection with Permitted Liens solely to the extent such restriction applies to assets permitted to be excluded from the Collateral pursuant to Section 3.2, (ii) customary restrictions on the assignment of leases, licenses and other agreements, and (iii) in connection with Permitted Transfers (provided that this clause (iii) shall not be construed to permit a Loan Party to agree with any Person (other than Agent or Lender) to grant a security interest on a Loan Party’s property in connection with a Permitted Transfer). No Loan Party shall enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of any Loan Party to create, incur, assume or suffer to exist any Lien upon any of its Intellectual Property, whether now owned or hereafter acquired, to secure its obligations under the Loan Documents to which it is a party, in each case, other than (a) Subject to this Agreement and the limitations on property other Loan Documents, (b) any agreements governing any purchase money Liens or capital lease obligations otherwise permitted hereby (in which case, any prohibition or limitation shall only be effective against the assets acquired after the Effective Date set forth financed thereby), (c) in Section 5.13connection with Permitted Liens, the Borrower willPermitted Indebtedness and Permitted Transfers, and will (d) customary restrictions on the assignment of leases, licenses and other agreements. Each Loan Party shall cause its Subsidiaries to protect and defend such Subsidiary’s title to its assets from and against all Persons claiming any interest adverse to such Subsidiary, and each other Credit Loan Party to, (i) shall cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject Subsidiaries at all times to first priority, perfected keep such Subsidiary’s property and assets free and clear from any Liens in favor of the Administrative Agent whatsoever (except for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent), and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock shall give Agent prompt written notice of any Pledge Subsidiary shall be required hereunder to the extent legal process adversely affecting such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Subsidiary’s assets.
Appears in 1 contract
Samples: Loan and Security Agreement (Nabriva Therapeutics PLC)
Collateral. (a) Subject to As continuing security for the limitations on property or assets acquired after the Effective Date set forth in Section 5.13Loan Obligation, the Borrower willClient hereby assigns, grants and conveys to SB a first priority Lien and security interest in all cash, stocks, bonds, and will cause each other Credit Party tosecurities and instruments now or hereafter in the Account, (i) cause and all dividends, interest and proceeds of its owned such property, and any property (subject to substituted by the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations Client in accordance with this Agreement (collectively, the “Collateral”). No substitution of Collateral shall be permitted without SB’s approval, upon such terms and conditions as may be prescribed by SB. The Client agrees to take any action reasonably requested by SB to maintain and preserve SB’s first priority Lien and security interest in the Collateral. Client hereby authorizes SB to prepare and file Uniform Commercial Code financial statements without the signature of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement Client in respect of the Capital Stock Transaction Documents and Collateral. Except for withdrawals of interest pursuant to the following two sentences or as provided in Section 2(f) or Section 9(c), no withdrawals from the Account shall be permitted until the Loan Obligation is paid in full and SB has no further obligations under this Agreement. At any time prior to the Client first requesting an Advance hereunder, Client shall be entitled to withdraw from the Account any interest that has been paid on the Collateral and remains as cash in the Account. From the date of the first Advance until the Loan Obligation has been repaid in full and SB has no further obligations under this Agreement, all interest paid on the Collateral shall be applied immediately to payment of accrued but unpaid interest on the Loan Obligation (including the amount of any Pledge Subsidiary interest added to principal pursuant to Section 3) and any other portion of the Loan Obligation then due, and Client authorizes SB to make such applications without any further approval or consent of Client required; provided, that, upon request made to SB, Client shall be required hereunder entitled to withdraw from the Account on or after the 15th day of each month (except to the extent that a Shortfall would result from such pledge thereunder would be prohibited by applicable law, or withdrawal) the Administrative Agent or its counsel reasonably determines that amount of such pledge would not provide material credit support interest paid on the Collateral prior to the first day of such month exceeding (x) any accrued but unpaid interest on the Loan Obligation (including the amount of any interest added to principal pursuant to Section 3) plus (y) the amount of interest on the Loan Obligation payable for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)preceding month.
Appears in 1 contract
Samples: Loan Agreement (WebMD Health Corp.)
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent that a security interest shall attach thereto for the benefit of the Holders of Secured Obligations Mortgagee to secure the Obligations in accordance with the terms and conditions all other sums and charges which may become due hereunder, thereunder or under any of the Collateral other Loan Documents, subject in all cases . The Mortgagor hereby authorizes the Mortgagee to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued file financing and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) continuation statements with respect to the Fee Owned Real Personal Property owned Collateral without the signature of the Mortgagor, if permitted by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages Code as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned adopted by the Credit Parties State. In any event the Mortgagor covenants to execute such financing and titled to reflect the Administrative Agent continuation statements as the lienholder on Mortgagee may reasonably request. If an Event of Default shall occur and be continuing, the Effective Date need Mortgagee, pursuant to the appropriate provisions of the Code, shall have the option of proceeding as to both real and personal property in accordance with its rights and remedies in respect of real property under this Mortgage and the law of the State, in which event the default provisions of the Code shall not apply. The Mortgagor agrees that, in the event the Mortgagee shall elect to proceed with respect to the Personal Property Collateral separately from the real property, unless a greater period shall then be retitled to reflect mandated by the Administrative Agent as the lienholder; and Code, five (5) no Mortgages or vehicle titles days notice of the sale of the Personal Property Collateral shall be required hereunder reasonable notice. The expenses of retaking, holding, preparing for sale and selling incurred by the Mortgagee shall be assessed against the Mortgagor and shall include, but not be limited to, the reasonable legal expenses incurred by Mortgagee. The Mortgagor agrees that it will not remove or permit to be removed from the Mortgaged Premises any of the Personal Property Collateral without the prior written consent of the Mortgagee except as set forth in Section 2.7.2. All replacements, renewals and additions to the extent Personal Property Collateral shall be and become immediately subject to the Borrower is in compliance with the security interest of this Mortgage and Vehicle Title Requirement)the provisions of this Article V. The Mortgagor warrants and represents that all Personal Property Collateral now is free and clear of all liens, encumbrances or security interests other than the Permitted Encumbrances, and that all replacements of the Personal Property Collateral, substitutions therefor or additions thereto, unless the Mortgagee otherwise consents, will be, free and clear of liens, encumbrances or security interests of others.
Appears in 1 contract
Samples: Mortgage and Security Agreement (Acadia Realty Trust)
Collateral. As security for all indebtedness and other obligations of Borrower to Bank from time to time, other than indebtedness that is excluded (aif at all) Subject from such secured obligations by the terms of the security agreement(s) required hereunder, Borrower shall grant to Bank security interests of first priority in all Borrower's assets, except to the limitations extent otherwise provided (if at all) under the above- referenced security agreement(s) and subject only to Permitted Priority Liens (as defined below). “Permitted Priority Liens” means Permitted Liens under Section 5.9(iii), “Permitted Derivatives Contract Liens,” “Permitted Target Liens,” liens on property or assets acquired after motor vehicles, and “Permitted Warehouseman’s Liens” (as such terms are hereinafter defined) which statutorily would have priority over the Effective Date set forth lien of Bank on the relevant Collateral. Borrower shall cause each of the Guarantors referenced in Section 5.131.5 hereof from time to time, on the Borrower willdate hereof in respect of Coco Café Inc. and AMI Runa U.S. LLC, and will cause within fifteen days of other such person/entity becoming a Guarantor, to grant to Bank security interests of first priority in all assets owned by each other Credit Party tosuch entity, except to the extent otherwise provided (iif at all) cause all under the above- referenced security agreement(s) and subject to Permitted Priority Liens, as evidenced by and subject to security agreements/joinders in form and substance satisfactory to Bank. All of its owned property (the foregoing shall be evidenced by and subject to the exceptions contained herein terms of such security agreements, financing statements, deeds or mortgages, and other documents as Bank shall reasonably require, all in any Collateral Document form and excluding the Excluded Assets) substance reasonably satisfactory to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance Bank and consistent with the terms of this Agreement. Borrower shall pay to Bank immediately upon demand the full amount of all out-of-pocket charges, costs and conditions expenses (to include fees paid to third parties but excluding all costs of Bank employees), expended or incurred by Bank in connection with any of the Collateral Documentsforegoing security, subject in all cases to Permitted Liensincluding without limitation, filing and recording fees and costs of appraisals, audits and title insurance. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)SECTION 1.5.
Appears in 1 contract
Collateral. The respective liens and security interests granted to Collateral Agent pursuant to the Collateral Documents (a) Subject constitute as to personal property included in the Collateral a valid security interest under the applicable UCC and (b) constitute as to the limitations on property or assets acquired after Mortgaged Property included in the Effective Date set forth Collateral a valid lien and security interest in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to Mortgaged Property under the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor laws of the Administrative State of Utah. The security interest granted to Collateral Agent for the benefit of the Holders of Secured Obligations pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise Collateral consisting of its reasonable discretion personal property has been perfected (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereofi) with respect to any property that can be perfected by filing, upon the Fee Owned Real Property owned by filing of financing statements in the Credit Parties on the Effective Date; filing offices identified in Exhibit D-5 (provided that the Borrower hereby agrees recording of the Trust Deed shall fulfill this requirement with respect to use its best efforts fixtures described therein), (ii) with respect to cause any property that can be perfected by control, upon execution of the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; Depositary Agreement, and (5iii) no Mortgages with respect to any property (if any) that can be perfected by possession, upon Collateral Agent receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or vehicle titles shall be required hereunder otherwise as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of Lien of any type, assignment or otherwise, except (I) Title Exceptions and Permitted Liens described in clauses (a) and (e) of the definition of “Permitted Liens” and (II) to the extent required by Governmental Rule, Permitted Liens described in the other clauses of the definition of “Permitted Liens.” All such action as is necessary to establish and perfect Collateral Agent’s rights in and to existing Collateral has been taken to the extent Collateral Agent’s security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action. As of the Closing Date, no filing, recordation, re-filing or re-recording other than those listed on Exhibit D-5 is necessary to perfect and maintain the perfection of the interest, title or Liens on the Collateral comprising personal property, and on the Closing Date all such filings or recordings will have been made to the extent Collateral Agent’s security interest can be perfected by filing. Borrower is in compliance with has properly delivered or caused to be delivered, or provided control, to Collateral Agent or Depositary all Collateral that permits perfection of the Mortgage Lien and Vehicle Title Requirement)security interest described above by possession or control.
Appears in 1 contract
Collateral. Payment of the Obligations will be secured by (ai) Subject a ---------- first perfected security interest in 100% of the Capital Stock of the Subsidiaries of the Borrower and 100% of the Capital Stock of the Borrower, (ii) subject to Permitted Liens and Section 6.15 hereof, a first perfected security interest in all of the limitations existing and future accounts (including without limitation, the Tenant Leases), equipment, inventory and general intangibles (including all existing and future Tenant Leases, and excluding any Interest Rate Protection Agreement to which any Lender is a party, motor vehicles, bank accounts, intellectual property and chattel paper) of the Borrower and its Subsidiaries, (iii) Guaranties of the Obligations by each Guarantor, (iv) in accordance with Section 6.15 hereof, deeds of trust and/or mortgages on all real property owned by the Borrower and each Subsidiary of the Borrower and (v) certain pre-existing leasehold deeds of trust and/or mortgages on Borrower's leasehold interest under certain Ground Leases (collectively, together with all other Properties or assets acquired after of the Effective Date set forth in Section 5.13Borrower, Subsidiaries and other Persons securing the Obligations from time to time, the "Collateral"). The Borrower agrees that it will, and will cause each other Credit Party its Subsidiaries and the Parent to, (i) execute and deliver, or cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priorityexecuted and delivered, perfected Liens in favor of such documents as the Administrative Agent may from time to time reasonably request to create and perfect a first Lien for the benefit of the Holders of Secured Obligations to secure Administrative Agent and the Obligations Lenders in accordance with the terms and conditions of the Collateral DocumentsCollateral, subject in all cases to Permitted Liens. Without limiting the generality of provided that, notwithstanding the foregoing, the Borrower will cause the Applicable Pledge Percentage is not obligated to grant or perfect any leasehold deed of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower trust or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)leasehold mortgage.
Appears in 1 contract
Collateral. Maintain all tangible Collateral in good condition; insure insurable Collateral for its full replacement cost under an insurance policy acceptable to Lender that names Lender as loss payee; execute, deliver and file, or cause the execution, delivery and filing of, any and all documents (a) Subject including without limitation, financing statements and continuation statements), necessary or desirable for the Lender to create, perfect, preserve, validate or otherwise protect a first priority lien and security interest in the Collateral; maintain, or cause to be maintained, at all times, the Lender's first priority lien and security interest in the Collateral; provided, however, Lender shall have a second priority lien and security interest in the Collateral listed on Exhibit 5.5 under the heading "Permitted Encumbrances"; immediately upon learning thereof, report to the limitations on property Lender any reclamation, return or assets acquired after repossession of any goods forming a part of the Effective Date set forth Collateral, any claim or dispute asserted by any debtor or other obligor owing an obligation to Borrower, and any other matters affecting the value or enforceability or collectibility of any of the Collateral; defend the Collateral against all claims and demands of all persons at any time claiming the same or any interest therein adverse to the Lender, and pay all costs and expenses (including reasonable attorneys' fees and reasonable expenses) incurred in Section 5.13connection with such defense; at Borrower's sole cost and expense (including reasonable attorneys' fees and reasonable expenses), settle any and all claims, demands and disputes, and indemnify and protect the Lender against any liability, loss or expenses arising from any such claims, demands or disputes or out of any such reclamation, return or repossession of goods forming a part of the Collateral; however, if an Event of Default shall have occurred, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to Lender shall have the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject right at all times to first prioritysettle, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance compromise, adjust or litigate all claims and disputes directly with the Customer or other obligor owing an obligation to Borrower upon such terms and conditions of as the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extentLender deems advisable, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: all costs and expenses thereof (1including reasonable attorneys' fees and reasonable expenses) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support incurred for the benefit account of the Holders of Secured Obligations pursuant to legally valid, binding Borrower and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) part of Article VII hereof) with respect the obligations owed to the Fee Owned Real Property owned by Lender and secured pursuant to this Agreement. The Borrower's Equipment shall be kept and maintained at the Credit Parties on locations of the Effective Date; provided Borrower's offices as set forth in Exhibits 5.1-1 through 5.1-6 Borrower shall not relocate or move the Equipment without the Lender's prior written consent, which shall not be unreasonably withheld. If Lender consents to the relocation of certain Equipment, Borrower shall execute all documents or financing statements and take such action as Lender may request to assure that Lender's first priority security interest in the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need equipment continues to be retitled perfected under the Uniform Commercial Code or other applicable laws of the jurisdiction to reflect which the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower Equipment is in compliance with the Mortgage and Vehicle Title Requirement)moved.
Appears in 1 contract
Samples: Credit Loan Agreement and Security Agreement (Dunn Computer Corp /Va/)
Collateral. (a) Subject to Except for the limitations on property or assets acquired after security interest created by the Effective Date set forth in Section 5.13Collateral Documents, the Borrower will, and will cause each other Credit Party toowns the Collateral owned by such Credit Party free and clear of any Lien other than Permitted Liens. (b) The execution and delivery of the Collateral Documents by Credit Parties, together with (i) cause the actions taken on or prior to the Closing Date pursuant to Section 3 and Section 5 and (ii) the delivery to Collateral Agent of any Pledged Collateral not delivered to Collateral Agent at the time of execution and delivery of the applicable Collateral Document (all of its owned property (subject which Pledged Collateral has been so delivered in accordance with the requirements of the applicable Collateral Documents) are effective to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens create in favor of the Administrative Collateral Agent for the benefit of the Holders of Secured Parties, as security for the respective Secured Obligations to secure (as defined in the Obligations applicable Collateral Document in accordance with the terms respect of any Collateral), a valid and conditions perfected First Priority Lien on all of the Collateral, and all filings and other actions necessary or desirable to perfect and maintain the perfection and First Priority Lien status of such Liens have been duly made or taken and remain in full force and effect, other than the filing of any UCC financing statements and other filings contemplated to be made on the Effective Date which have been delivered to Collateral DocumentsAgent for filing (but not yet filed), subject the filing of any Mortgages, the periodic filing of UCC continuation statements in all cases respect of UCC financing statements filed by or on behalf of Collateral Agent and the entering into of any deposit account and securities account control agreements. (c) No authorization, approval or other action by, and no notice to Permitted Liens. Without limiting or filing with, any governmental authority or regulatory body is required for either (i) the generality pledge or grant by any Credit Party of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party Liens purported to be subject at all times to a first priority, perfected Lien created in favor of Collateral Agent, for the Administrative Agent benefit of Secured Parties, pursuant to secure the Obligations in accordance with the terms and conditions any of the Collateral Documents to or (ii) the extent, and within such time period as is, reasonably required exercise by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement Collateral Agent of any rights or remedies in respect of any Collateral (whether specifically granted or created pursuant to any of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited Collateral Documents or created or provided for by applicable law), except for filings or recordings contemplated by this Section 4.13 and except for consents referred to in Sections 4.4 and 4.5 and except as may be required, in connection with the Administrative Agent or its counsel reasonably determines that disposition of any Pledged Collateral, by laws generally affecting the offering and sale of securities and except as may be required in connection with the foreclosure of any Mortgage. (d) Except such pledge would not provide material credit support as may have been filed in favor of Collateral Agent, for the benefit of the Holders of Secured Obligations pursuant to legally validParties, binding and enforceable Pledge Agreements; as contemplated by this Section 4.13 or have been filed in connection with Permitted Liens, (2i) no Mortgages effective UCC financing statement, fixture filing or other instrument similar in effect covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law all or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit any part of the Holders of Secured Obligations pursuant to legally valid, binding Collateral is on file in any filing or recording office and enforceable Mortgages; (3ii) no Mortgages are required to be delivered hereunder until December 31, 2009 effective filing covering all or such later date as any part of the Administrative Agent may agree Collateral which is Intellectual Property is on file in the exercise of its reasonable discretion (it being understood United States Patent and agreed that Trademark Office or the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages United States Copyright Office or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)any similar foreign or state office.
Appears in 1 contract
Collateral. (a) Subject In the event that the REIT Subordinated Notes shall not have been paid in full from the proceeds of new equity issued by the REIT on or before June 18, 2002, then on such date the Borrowers and their Subsidiaries shall deliver to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure Lenders as security for the Obligations in accordance with the terms first priority perfected mortgages, deeds of trust, security interests and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock other liens (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of as the Administrative Agent to secure shall specify) on Borrowing Base Properties the Obligations aggregate Capitalized Value of which shall be not less than 167% (or, if the option provided in accordance with the terms and conditions Section 9.5 shall have been exercised, 182%) of the Collateral Documents Total Commitment then in effect; PROVIDED, that the Administrative Agent may advise the Borrowers that it declines to accept such a lien on any Borrowing Base Property, which the extentAdministrative Agent may do in its discretion, and within such time period as iswhereupon each Borrowing Base Property so declined shall no longer be Eligible Real Estate; and PROVIDED, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect FURTHER, that at least 90% of the Capital Stock aggregate Capitalized Value of any Pledge Subsidiary such Borrowing Base Properties shall be required hereunder attributed to the extent properties which are used principally for retail (rather than office) uses. The granting of such pledge thereunder would security shall be prohibited confirmed or supplemented by such mortgagee title insurance policies, opinions of counsel (including local real estate counsel), evidence of compliance with local real property regulations, Environmental Laws and other applicable law, or evidence of the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support absence of Hazardous Substances, federal flood insurance coverage, evidence of insurance for the benefit of the Holders of Secured Obligations pursuant to legally validsecured lenders, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit environmental indemnities in favor of the Holders secured lenders, appraisals conducted in accordance with law and regulations governing the Lenders or any of Secured Obligations pursuant to legally valid, binding them and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date other documentation and information as the Administrative Agent may agree shall require in accordance with its standard and customary secured real estate lending practices. All such documentation shall be satisfactory in form and substance to the exercise of its reasonable discretion (it being Administrative Agent. It is understood and agreed that, in the event that payment in full of the failure REIT Subordinated Notes from the proceeds of new equity of the REIT shall not have occurred prior to deliver such Mortgages by the date ultimately required by March 18, 2002, then the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect be authorized to begin the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles documentation and other processes which it deems necessary and advisable for the motor vehicles owned by taking of security under this Section 7.17 and shall be entitled for reimbursement of all costs and expenses thereof as provided in the Credit Parties following sentence even if such payment then occurs on or prior to June 18, 2002. All costs and titled to reflect expenses of providing such security, including without limitation appraisal fees and expenses, reasonable legal fees and expenses, insurance premiums and all other reasonable expenses of the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles Agent, shall be required hereunder to for the extent account of the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Borrowers.
Appears in 1 contract
Samples: Revolving and Term Credit Agreement (Heritage Property Investment Trust Inc)
Collateral. As security for all indebtedness of Borrower to Bank and its affiliates subject hereto, Borrower hereby grants to Bank security interests of first priority in all Borrower's assets in all Borrower's obligations hereunder and all other Loan Documents executed herewith, including the Xxxxx Fargo Commercial MasterCard Customer Agreement (a) Subject "Card Agreement"), as Card Agreement may be amended, modified, restated, extended, increased, and/or rearranged from time to time (collectively the limitations "INDEBTEDNESS"). Borrower and Bank acknowledge and agree that the above sentence does not give Borrower the right to extend or increase its obligations to Bank beyond the ones created on property or assets acquired after even date herewith without MILLC's and MCA's written approval. As additional security for the Effective Date set forth Indebtedness of Borrower to Bank hereunder, Borrower shall cause MCA and M-I L.L.C., a Delaware limited liability company ("MILLC"), to grant to Bank security interests of first priority in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property MCA's and MILLC's respective outstanding limited liability company interests of the Borrower. Borrower shall also cause MCA and MILLC (collectively referred to herein as the "BUSINESS VENTURES OWNERS") to evidence any loans made by the Business Venture Owners as of the date hereof, which constitute inter-company debt, by requiring the parties to such loans to execute a promissory note in form and substance satisfactory to Bank and to collaterally assign to and deliver possession of such promissory notes to Bank. It is agreed and understood that the grant to Bank of security interests in said promissory notes shall be at all times a first priority security interest therein. All of the foregoing shall be evidenced by and subject to the exceptions contained herein terms of such security agreements, financing statements, deeds of trust and other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall reimburse Bank immediately upon demand for all costs and expenses incurred by Bank in connection with any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit foregoing security, including without limitation, filing and recording fees and costs of the Holders of Secured Obligations to secure the Obligations in accordance with the terms appraisals, audits and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)title insurance.
Appears in 1 contract
Collateral. (a) Subject to To secure full and complete payment and performance of the limitations on property or assets acquired after the Effective Date set forth in Section 5.13Obligation, the Borrower willLoan Parties hereby jointly and severally grant and convey to, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens create in favor of the of, Administrative Agent (for the ratable benefit of the Holders of Secured Obligations Lenders) first priority Liens in and to secure the Obligations in accordance with following on the terms and conditions of set forth in the Collateral Documents, subject in : (i) all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) stock of each Pledge Subsidiary directly the Domestic Subsidiaries owned by the Borrower or any other Credit Party Domestic Subsidiary; (ii) 65% of the outstanding stock of each of the Material Foreign Subsidiaries owned by Borrower or any Domestic Subsidiary; and (iii) all inventory and accounts receivable of Borrower or any Domestic Subsidiary, excluding inventory located outside the United States and accounts receivable generated from the sale of inventory to purchasers located outside the United States (collectively, the "FOREIGN ASSETS"), so long as the aggregate value of such Foreign Assets does not exceed 10% of the total assets of the Loan Parties, as more particularly described in the Collateral Documents (collectively, the "COLLATERAL"); provided that, the stock of any Domestic Subsidiary that will be merged out of existence upon the occurrence of the Subsidiary Mergers will not be required to be subject pledged hereunder unless the Subsidiary Mergers have not been consummated in full on or prior to the 60th day following the Initial Borrowing Date, at which time the stock of each then-existing Domestic Subsidiary shall be pledged hereunder. In addition, promptly after the designation, formation, or Acquisition of any new Domestic Subsidiary or after any Foreign Subsidiary becomes a Material Foreign Subsidiary as reflected on the most-recently d-699365.10 42 CoorsTek Credit Agreement ------------------------- delivered Financial Statements, Borrower shall execute and deliver to Administrative Agent all times instruments and documents (including, without limitation, Collateral Documents and all certificates and instruments representing shares of stock), and shall take all further action that may be necessary or desirable, or that Administrative Agent may reasonably request, to a grant and perfect first priority, perfected Lien priority Liens in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the ratable benefit of the Holders Lenders) in all of Secured Obligations pursuant to legally valideach new Domestic Subsidiary owned by Borrower or any Domestic Subsidiary, binding 65% of the issued and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunderoutstanding stock of each new Material Foreign Subsidiary owned by Borrower or any Domestic Subsidiary as security for the Obligation, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property any additional Collateral owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)any new Domestic Subsidiary.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Coorstek Inc)
Collateral. Each Significant Subsidiary of the Borrower (including each Significant Subsidiary which is formed or acquired after the Closing Date and each Subsidiary of the Borrower which becomes a Significant Subsidiary after the Closing Date) shall within thirty (30) days following the date such Person becomes a Significant Subsidiary: (i) pledge the equity interests it owns in any other Significant Subsidiary to the Collateral Agent for the benefit of the Banks on a first priority perfected basis pursuant to the Pledge Agreements, (ii) cause all of the issued and outstanding capital stock, partnership interests, member interests or other equity interest of such Significant Subsidiary that are owned by the Borrower or another Subsidiary of the Borrower to be pledged on a first priority perfected basis to the Collateral Agent for the benefit of the Banks pursuant to the Pledge Agreements, (iii) subject to Section 10.19 [Release of Collateral; Springing Collateral], execute and deliver to the Collateral Agent for the benefit of the Banks Collateral Documents in form and substance satisfactory to the Administrative Agent, including without limitation Security Agreements, Patent, Trademark and Copyright Security Agreements, and Mortgages necessary to grant first priority perfected liens and security interests (subject only to Permitted Liens) in favor of the Banks in substantially all of the assets of the such Significant Subsidiary (subject to the discretion of the Administrative Agent to exclude from the Collateral: (a) Subject the Mxxxxx 8200 dragline (serial number 23321), (b) all undeveloped land so long as such land is not used in connection with or related to any Mining Operation of any Loan Party and no Loan Party has any logging or timber rights with respect to such land, (c) vehicles, (d) any other assets which pursuant to Section 7.1.12 [Collateral; Further Assurances] are not required to be pledged to the limitations on property Collateral Agent for the benefit of the Banks, and (e) those assets which, in the discretion of the Administrative Agent, the taking of Liens thereupon is impractical, prohibited by law or assets commercially unreasonable), (iv) deliver opinions of legal counsel, with respect to such Significant Subsidiary, including opinions of local counsel in each applicable jurisdiction, as such opinions may be reasonably required by the Administrative Agent and with such opinions to be satisfactory in form, scope and substance to the Administrative Agent in its reasonable discretion, (v) deliver Indemnity Agreements, and (vi) obtain Uniform Commercial Code, lien, tax, mortgage, leasehold mortgage, and judgment searches (including searches of the applicable real estate indexes), with the results, form scope and substance of such searches to be satisfactory to the Administrative Agent. With respect to any Significant Subsidiary which is formed or acquired after the Effective Closing Date set forth or any Subsidiary which becomes a Significant Subsidiary after the Closing Date: (i) with respect to Real Property which is required to be subject to a Mortgage, and any as-extracted minerals or fixtures (as such terms are defined in Section 5.13the Uniform Commercial Code) which are required to be subject to a Mortgage or a Security Agreement, the requirements of this Section 10.18.2 shall be satisfied with respect to Real Property and with respect to fixtures and as extracted collateral if the Loan Parties and their Subsidiaries take all steps within 120 days following the date a Subsidiary becomes a Significant Subsidiary (or such longer period as determined in the Administrative Agent’s sole discretion) to grant a first priority perfected lien and security interest thereon (subject only to Permitted Liens). With respect to each Securitization Subsidiary (including each Securitization Subsidiary which is formed after the Closing Date) the Borrower will, and will cause each other Credit Party to, shall within thirty (30) days following the date such Person becomes a Securitization Subsidiary: (i) cause all of its the issued and outstanding capital stock, partnership interests, member interests or other equity interest of such Securitization Subsidiary that are owned property (subject by the Borrower or another Loan Party to be pledged on a first priority perfected basis to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents Banks pursuant to the extentPledge Agreements, and within (ii) deliver opinions of legal counsel, with respect to such time period Securitization Subsidiary, including opinions of local counsel in each applicable jurisdiction, as is, such opinions may be reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement Agent and with such opinions to be satisfactory in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder form, scope and substance to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or in its counsel reasonably determines that such pledge would not provide material credit support for the benefit reasonable discretion, (iii) deliver Indemnity Agreements, and (iv) obtain Uniform Commercial Code, lien, tax, and judgment searches (including searches of the Holders applicable real estate indexes), with the results, form scope and substance of Secured Obligations pursuant such searches to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder satisfactory to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Agent.
Appears in 1 contract
Samples: Credit Agreement (Arch Coal Inc)
Collateral. If, during the term of this Agreement, the Reinsurer (a) Subject loses or has a change in its license, approval, or accreditation, or (b) is not authorized, admitted, approved, accredited, or (c) has its authority to do business revoked by any regulatory authority, in any jurisdiction in which such licensing or accreditation is necessary for the limitations on property or assets acquired after Ceding Company to take financial statement statutory reserve credit for the Effective Date set forth in Section 5.13reinsurance under this Agreement, then at the Reinsurer’s expense, the Borrower willReinsurer will provide the Ceding Company with “Collateral” in the form of either clean, irrevocable unconditional and will cause each other Credit Party to“evergreen” letters of credit, (i) cause all of its owned property (subject to the exceptions contained herein assets in trust held under an agreement acceptable under applicable insurance laws and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priorityregulations, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party form of collateral or treaty modification that is agreeable to both parties and allows the Ceding Company to take full statutory reserve credit in all jurisdictions where the Ceding Company files statutory financial statements and is authorized to do business until such time as the Ceding Company is thereafter able to receive reserve credit in all jurisdictions for the reinsurance ceded under this Agreement without such collateral, provided, however, that this collateral requirement will be subject at all times on a basis no more onerous than is required for the Ceding Company to a first priority, perfected Lien in favor receive full reserve credit. The Reinsurer will bear the cost of the Administrative Agent to secure Collateral. If a letter of credit is provided, the Obligations letter of credit will be issued by a bank which [_____]. The designated bank must be organized or licensed in accordance with the terms United States and conditions must appear on the list of approved banks published by the Securities Valuation Office of the Collateral Documents National Association of Insurance Commissioners. The Reinsurer will notify the Ceding Company of any change in the Reinsurer’s licensing, approval or accreditation that is relevant to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder Ceding Company’s ability to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material take reserve credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable possible, but in no event later than [_____] days after such change. In addition, if the Reinsurer fails to provide security for the Ceding Company’s reserve credit, fails to otherwise rectify the problem and/or fails to comply as described above within [_____] days of written notice thereof from the Ceding Company in accordance with Section 13.1, then in the event any of the contingencies identified above has not been cured by the next “as of” date of any of the Ceding Company’s quarterly statutory financial statements, the Ceding Company shall have all available remedies including but not limited to [_____]. Such [_____], if elected by the Ceding Company, must be elected no later than [_____] calendar days after the Effective Date; (4) date the Reinsurer fails to remedy the Ceding Company’s reserve credit problem related to the loss of the Reinsurer’s licensing status. In no vehicle titles for event shall the motor vehicles owned Ceding Company be [_____] under this Agreement. The Ceding Company or the Ceding Company’s successors in interest may draw upon the Collateral at any time, notwithstanding any other provisions of this Agreement, and the proceeds of any such draw shall be utilized by the Credit Parties and titled to reflect Ceding Company or its successors in interest by operation of law, only for one or more of the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).following reasons:
Appears in 1 contract
Samples: Massachusetts Mutual Variable Life Separate Account I
Collateral. (a) Subject To secure the full and complete payment and performance of the Obligations (or, with respect to any Lien granted by any Subsidiary of the Borrower in accordance with SUBCLAUSE (I) or CLAUSE (B) succeeding, to secure the full and complete payment and performance of all Debt, liabilities and obligations of each Subsidiary Guarantor under its Guarantee of the Obligations), (i) the Borrower will, and will cause each of the Subsidiary Pledgors to, reaffirm and grant to the limitations Agent for the benefit of the Agent and the Lenders (as successors, respectively, to B of A, as Agent and the Existing Lenders under the Existing Credit Agreement) a perfected, first priority Lien on property all of its right, title and interest in and to all Capital Stock of the Subsidiaries of the Borrower that are corporations (except for Excluded Subsidiaries) owned by the Borrower or assets acquired after any Subsidiary (except for Excluded Subsidiaries) of the Effective Date set forth in Section 5.13Borrower whether now owned or hereafter acquired, pursuant to the Security Documents and (ii) subject to the succeeding provisions of this SECTION 5.1, the Borrower will, and will cause each of its Subsidiaries (other Credit Party than Excluded Subsidiaries) to, (i) cause all of its owned property (subject reaffirm and grant to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders Agent and the Lenders (as successors, respectively, to B of Secured Obligations A, as Agent and the Existing Lenders under the Existing Credit Agreement) a perfected, first priority Lien (subject only to secure the Obligations Permitted Liens, if any, which are permitted in accordance with this Agreement) on all of its right, title and interest in and to (A) the terms real Properties (or interests therein) described in SECTION 5.6, and conditions tangible personal Properties consisting of equipment and inventory located thereon or used in connection therewith, in each case whether now owned or hereafter acquired, and (B) any other real Properties (or interests therein), and tangible personal Properties consisting of equipment and inventory located therein or used in connection therewith, in each case whether now owned or hereafter acquired, of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock and/or its Subsidiaries (other than Excluded AssetsSubsidiaries) of each Pledge Subsidiary directly owned as may be so requested and selected by the Borrower Agent or any other Credit Party the Required Lenders, which Liens shall be granted pursuant to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, evidenced and within such time period as is, reasonably required accompanied by the Administrative Agent. Notwithstanding Mortgages and such other agreements, documents or instruments consistent with this Agreement as the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, Agent or the Administrative Agent or its counsel Required Lenders may reasonably determines request; PROVIDED, HOWEVER, that such pledge would not provide material credit support for Liens referred to in SUBCLAUSE (B) preceding shall (unless otherwise agreed by the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2Required Lenders) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31granted promptly upon the request (and, 2009 or in any event unless the Required Lenders otherwise agree, within ten Business Days after such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(irequest) of Article VII hereofthe Agent or the Required Lenders, which request may be made only upon (but at any time after) with respect to the Fee Owned Real Property owned by occurrence and during the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery continuation of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages a payment Default or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)an Event of Default.
Appears in 1 contract
Collateral. (a) Subject to the limitations The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each other Guarantor in all of their accounts, chattel paper, instruments, documents, deposit accounts, inventory and certain other personal property, whether now owned or hereafter acquired or arising, and will cause each other Credit Party toall proceeds thereof; provided, however, that: (i) until the occurrence of the Borrowing Base Condition and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on deposit accounts maintained by the Borrower and the other Guarantors need not be perfected, (ii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, no Liens need be granted on the stock of any Domestic Subsidiaries, and Liens on the Voting Stock of a Foreign Subsidiary shall be limited to 65% of the total outstanding Voting Stock of such Foreign Subsidiary or, if less at any time, the greatest percentage of the total outstanding Voting Stock thereof the pledge of which would not, under applicable U.S. tax laws and regulations in effect at such time, cause all the owner of such Voting Stock or its owned property direct or indirect parent corporation to recognize a "deemed dividend" for U.S. federal income tax purposes, and (subject iii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens need not be granted on the assets of a Foreign Subsidiary. The Borrower acknowledges and agrees that the Liens on the Collateral shall be granted to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, subject in all cases the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingpreceding sentence and to Liens permitted by Section 8.8 hereof, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Credit Agreement (Plexus Corp)
Collateral. (a) Subject With respect to Collateral located in the limitations on property or assets acquired after the Effective Date set forth in Section 5.13United States, the Borrower willsecurity interest granted by ARTICLE VII hereof and accompanying financing statements, and will cause each other Credit Party to, when (i) cause all of its owned property (subject to duly filed in the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations appropriate governmental offices in accordance with the terms Uniform Commercial Code in effect in the applicable jurisdictions and conditions (ii) Borrower has acquired an ownership interest in the Collateral, shall create a valid and perfected first priority Lien in and to the Collateral, enforceable against (x) other Persons in all jurisdictions securing the payment of the Collateral Documents, Obligations without penalty (subject in all cases to Permitted Liens) and (y) Liens such as carrier's, warehousemen's and mechanic's liens, which arise in the ordinary course of business with respect to obligations not yet due or being contested in good faith by appropriate proceedings and for which Borrower shall have set aside reserves on its books as required by GAAP. Without limiting the generality of the foregoing, upon filing such financing statements, no further action will be required to perfect fully the Borrower will cause Lien of Lender in any such Collateral. With respect to Collateral located in Mexico or Canada, the Applicable Pledge Percentage of security interest granted by ARTICLE VII hereof when, the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations appropriate action has been taken in accordance with appropriate statutes and regulations in effect in the terms applicable jurisdictions, and conditions Borrower has acquired an ownership interest in the Collateral, shall create a valid and perfected first priority Lien in and to the Collateral, enforceable against (x) other Persons in said jurisdiction securing the payment of the Collateral Documents Obligations without penalty (subject to the extentPermitted Liens) and (y) Liens such as carrier's, warehouseman's and within such time period as ismechanic's liens, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree which arise in the exercise ordinary course of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) business with respect to the Fee Owned Real Property owned obligations not yet due or being contested in good faith by the Credit Parties appropriate proceedings and for which Borrower shall set aside reserves on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages books as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned required by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)GAAP.
Appears in 1 contract
Samples: Loan and Security Agreement (GST Telecommunications Inc)
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes, the Intermediate Holdings Guarantee and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes, the Intermediate Holdings Guarantee and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuer set forth in Section 5.13, the Borrower will7.07, and will cause each other Credit Party tothe Notes, (i) cause all of its owned property Intermediate Holdings Guarantee and the Note Guarantees and the Intercreditor Agreements and the Collateral Documents, shall be secured by a Lien on the Collateral on a junior basis to the First Lien Priority Indebtedness and on a senior basis to the Second Priority Lien Obligations (subject to Permitted Liens), as provided in this Indenture, the exceptions contained herein Collateral Documents and in any Collateral Document the Intercreditor Agreements to which the Issuer, Intermediate Holdings and excluding the Excluded Assets) Note Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture and will be subject at secured by all times to first priority, perfected Liens in favor of the Administrative Agent Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture, the Collateral Documents and the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints The Bank of New York Mellon Trust Company, N.A. as the initial Collateral Agent and the Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Issuer, Intermediate Holdings and the Note Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders of Secured Obligations and the Trustee, in each case pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to and the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Intercreditor Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Indenture (Domus Holdings Corp)
Collateral. Borrower acknowledges and agrees that the Obligations shall at all times be secured by (a) Subject to the limitations a valid, perfected and enforceable Lien on property or assets acquired after the Effective Date set forth in Section 5.13, Cash Collateral of the Borrower willin an amount not less than Fifteen Million Dollars ($15,000,000) and (b) a valid, perfected and will cause each enforceable Lien on all other Credit Party to, assets and properties of the Borrower and Guarantors described in the Security Agreement which shall at all times have a collateral loan value (ias determined by the Bank in accordance with its customary standards for commercial loans and after deducting outstanding obligations secured by a first priority lien in favor of GECC therein) cause of not less than Five Million Dollars ($5,000,000). The Borrower further acknowledges and agrees that such Lien on Cash Collateral shall be a valid and perfected first priority Lien and shall in the case of all of its owned property other Collateral be a valid and perfected Lien (subject to the exceptions contained herein and Allowed Liens as defined in any Collateral Document and excluding the Excluded AssetsSecurity Agreement) to be subject at all times to first priorityas set forth in the Intercreditor Agreement. The Bank agrees, perfected Liens in favor so long as no Event of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance Default, or event which with the terms and conditions lapse of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoingtime, the giving of notice or both, would constitute an Event of Default, shall have occurred and be continuing, upon request to do so by the Borrower, the Bank shall release its Lien on, and disburse to the Borrower will cause all sums on deposit in the Applicable Pledge Percentage Cash Collateral Account in excess of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned $15,000,000 or such greater amount as shall have been deposited by the Borrower therein pursuant to Section 9.1(n) hereof. The Bank further agrees that in the event Borrower either reduces the Revolving Loan Commitment or any other Credit Party increases and maintains the amount of Eligible Cash Collateral to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents an amount equal to the extent, and within such time period existing Revolving Loan Commitment (as is, reasonably required by set out in Section 9.1(n) hereof) then the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary Bank shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or terminate its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property Lien on all Collateral other than Fee Owned Real Property shall be required hereunder, the Cash Collateral Account and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties all monies on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)deposit therein.
Appears in 1 contract
Collateral. (a) Subject The due and punctual payment of the principal of, premium, if any, and interest on the Notes, the Intermediate Holdings Guarantee and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the limitations extent permitted by law), if any, on property or assets acquired after the Effective Date Notes, the Intermediate Holdings Guarantee and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuers, Intermediate Holdings and the Note Guarantors set forth in Section 5.13, the Borrower will7.07, and will cause each other Credit Party tothe Notes, (i) cause all of its owned property Intermediate Holdings Guarantee and the Note Guarantees and the Intercreditor Agreement and the Collateral Documents, shall be secured by a Lien on the Collateral on a junior basis to the First Lien Priority Indebtedness and on a senior basis to the Junior Lien Collateral Indebtedness (subject to Permitted Liens), as provided in this Indenture, the exceptions contained herein Collateral Documents and in any Collateral Document the Intercreditor Agreement to which the Issuer, Intermediate Holdings and excluding the Excluded Assets) Note Guarantors, as the case may be, shall be or shall have become parties to simultaneously with the execution of this Indenture and will be subject at secured by all times to first priority, perfected Liens in favor of the Administrative Agent Collateral pledged pursuant to the Collateral Documents hereafter delivered as required or permitted by this Indenture, the Collateral Documents and the Intercreditor Agreement. The Trustee, for the benefit of the Holders, hereby appoints The Bank of New York Mellon Trust Company, N.A. as the initial Collateral Agent and the Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreement. The Issuer, Intermediate Holdings and the Note Guarantors hereby agree that the Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders of Secured Obligations and the Trustee, in each case pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to and the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)Intercreditor Agreement.
Appears in 1 contract
Samples: Indenture (Realogy Holdings Corp.)
Collateral. (a) Subject to the limitations on property or assets acquired Effective upon any Subsidiary becoming a Guarantor after the Amendment Effective Date set forth in Section 5.13Date, the Borrower will, and will shall cause each other Credit Party to, such Guarantor within fifteen Business Days after becoming a Guarantor (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree agree) to grant to the Collateral Agent for the benefit of the Secured Parties a first (subject to Permitted Liens) priority security interest in all assets (including real property and the Capital Stock of its Subsidiaries) of such Guarantor pursuant to documentation (including related certificates and opinions) reasonably acceptable to the Administrative Agent. The Borrower will, and will cause the Borrower and each of the Guarantors to, at the expense of the Borrower, make, execute, endorse, acknowledge, file and/or deliver to the Administrative Agent from time to time such schedules, confirmatory assignments, conveyances, financing statements, transfer endorsements, powers of attorney, certificates, reports and other assurances or instruments and take such further steps relating to the Collateral as the Administrative Agent may reasonably require. Notwithstanding any of the foregoing, (a) neither the Borrower nor any other Guarantor shall be obligated hereby to grant a security interest in any asset if the granting of such security interest would result in the exercise violation of its reasonable discretion any applicable law or regulation, (it being understood b) the Collateral shall not include a security interest in any asset if the granting of such security interest would be prohibited by enforceable anti-assignment provisions of contracts or applicable law (after giving effect to relevant provisions of the Uniform Commercial Code), (c) fee-owned real property having an individual fair market value of less than $2,500,000 or aggregate fair market value of less than $10,000,000 shall be excluded from the Collateral, (d) the Collateral shall not include cash and agreed cash equivalents, accounts receivable or Portfolio Securities, or deposit or security accounts (except to the extent that the failure foregoing are proceeds 117 of Collateral; provided that in no event shall any control agreements be required) containing any of the foregoing, other assets requiring perfection through control agreements, letter-of-credit rights, leasehold real property, motor vehicles and other assets subject to deliver such Mortgages certificates of title (other than any corporate aircraft), interests in certain joint ventures and non-Wholly-Owned Subsidiaries which cannot be pledged without the consent of one or more third parties and obligations the interest on which is wholly exempt from the taxes imposed by subtitle A of the date ultimately required by Code, (e) the pledge of the Capital Stock of Foreign Subsidiaries shall be limited to 65% of the Capital Stock of material first-tier Foreign Subsidiaries, (f) the Administrative Agent shall constitute a Default under clause (d)(i) have the discretion to exclude from the Collateral immaterial assets, assets as to which it and the Borrower determine that the cost of Article VII hereof) with respect obtaining such security interest would outweigh the benefit to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided Lenders and other assets in which it may determine that the Borrower hereby agrees to use its best efforts to cause the delivery taking of such Mortgages as soon as reasonably practicable after the Effective Date; a security interest would not be advisable, and (4g) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages foreign law security or vehicle titles pledge agreements shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)required.
Appears in 1 contract
Collateral. (a) Subject to The obligations of Borrower under the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) Loan Documents shall be secured by a perfected first priority security interest to be subject at all times to first priority, perfected Liens in favor of held by the Administrative Agent for the benefit of the Holders Lenders in the Qualifying Collateral Pool Properties, as described below. The Mortgages on the initial Qualifying Collateral Pool Properties (or amendments to Mortgages previously recorded pursuant to the Original Credit Agreement) shall be executed and delivered for recordation not later than the Agreement Effective Date. Borrower shall also provide to the Administrative Agent not later than the Agreement Effective Date with respect to each such Qualifying Collateral Pool Property, an Appraisal approved by the Administrative Agent, a rent roll, ARGUS runs, leasing activity reports, tenant sales reports (if applicable), Leases, operating statements, an annual budget or cash flow projection, insurance certificates, lender’s title insurance policies (or date down endorsements to the lender’s title insurance policies previously delivered to the Administrative Agent pursuant to the Original Credit Agreement), surveys (which if no material changes to the improvements thereon have occurred, may be older surveys accompanied by an affidavit of Secured Obligations no change from the Borrower), flood hazard determinations/flood insurance, subordination, non-disturbance and attornment agreements and estoppel certificates (the “Required SNDAs and Estoppels”) from all tenants of Single Tenant Projects and from those tenants leasing 15,000 or more square feet of gross leaseable area in all other Projects in a form satisfactory to secure the Obligations in accordance with Administrative Agent (unless previously delivered pursuant to the terms and conditions Original Credit Agreement or waived by the Administrative Agent), environmental assessments satisfactory to the Administrative Agent, property condition reports satisfactory to the Administrative Agent, a written opinion of the Borrower’s counsel addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent regarding each Mortgage (except those Mortgages delivered pursuant to the Original Credit Agreement with respect to which no opinion will be required at the Agreement Effective Date or at any time thereafter so long as the Administrative Agent previously received a satisfactory opinion that continues to benefit the Administrative Agent and Lenders under this Agreement) and such other due diligence materials as the Administrative Agent shall reasonably require for each - 27 - Qualifying Collateral Documents, subject in all cases to Permitted LiensPool Property (the “Required Diligence”). Without limiting the generality of Notwithstanding the foregoing, Borrower shall have the Borrower will cause right to deliver any such Required SNDAs and Estoppels after the Applicable Pledge Percentage addition of the issued related Qualifying Collateral Pool Property, so long as any such Required SNDAs and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party Estoppels shall be delivered to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent (unless the requirement for delivery thereof has been waived by the Administrative Agent) by a date ninety (90) days after the addition of such Qualifying Collateral Pool Property to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to Pool and, if such delivery or waiver has not occurred by such date, then such Qualifying Collateral Pool Property shall be excluded from the extent, and within Collateral Pool until such time period as is, reasonably required delivery is made or waived by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect Borrower shall pay for all Appraisals of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be Qualifying Collateral Pool Properties required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Credit Agreement (Inland Western Retail Real Estate Trust Inc)
Collateral. The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by (a) Subject to the limitations valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each U.S. Subsidiary in all capital stock and other equity interests held by such Person in each of its U.S. Subsidiaries, whether now owned or hereafter formed or acquired, and will cause all proceeds thereof, and (b) valid, perfected, and enforceable Liens on all right, title, and interest of the Borrower and each other Credit Party toSubsidiary in all personal property, fixtures, and real estate, whether now owned or hereafter acquired or arising, and all proceeds thereof; provided, however, that: (i) cause all the Lien of its owned property (the Administrative Agent on Property subject to a Capital Lease or conditional sale agreement or subject to a purchase money lien, in each instance to the extent permitted hereby, shall be subject to the exceptions contained herein rights of the lessor or lender thereunder, (ii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on local pxxxx cash deposit accounts maintained by the Borrower and its Subsidiaries in proximity to their operations need not be perfected provided that the total amount on deposit at any one time not so perfected shall not exceed $100,000 in the aggregate and Liens on payroll accounts maintained by the Borrower and its Subsidiaries need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligation and Liens on broker accounts associated with Hedging Agreements need not be perfected, (iii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on vehicles which are subject to a certificate of title law need not be perfected provided that the total value of such property at any one time not so perfected shall not exceed $500,000 in the aggregate, and (iv) Liens on the capital stock or other equity interests of a Foreign Subsidiary shall be limited to 66% of the total outstanding Voting Stock and 100% of all other equity interests of such Foreign Subsidiary. The Borrower acknowledges and agrees that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, subject in all cases the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject, however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingimmediately preceding sentence, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Collateral. The security interests in the Collateral granted to Administrative Agent pursuant to the Collateral Documents (a) Subject constitute as to personal property included in the limitations on property or assets acquired after Collateral the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property first priority security interest (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded AssetsPermitted Liens) purported to be subject at created under such Collateral Document, and (b) are, as to Collateral which can be perfected by the proper filing of a UCC financing statement, superior and prior to the rights of all times to first prioritythird Persons now existing or hereafter arising whether by way of mortgage, perfected Liens in favor of the Administrative Agent lien, security interests, encumbrance, assignment or otherwise, except for the benefit of the Holders of Secured Obligations to secure the Obligations Permitted Liens. All such action as is necessary in accordance with the terms Collateral Documents has been taken to establish and conditions perfect Administrative Agent’s or the Depositary’s rights in and to, and first priority Lien on, subject to Permitted Liens, the Collateral, including any recording, filing, registration, giving of notice, granting of control or other similar action. The Collateral Documents relating to the Collateral and the financing statements relating thereto have been or contemporaneously with the execution hereof will be duly filed or recorded in each office and in each jurisdiction where required in order to create, perfect and maintain perfected the first Lien (subject to Permitted Liens) and security interest described above. The Lien of each Mortgage constitutes a valid and subsisting Lien of record on all the Mortgaged Property described in such Mortgage (subject to Permitted Liens). No filing, recording, re-filing or rerecording other than those listed in Exhibit E-11 is necessary to perfect and maintain the perfection and priority of the interest, title or Liens referred to in this Section 4.26 relating to personal property set forth in the Collateral Documents, subject in and on or prior to the Financial Closing Date all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock such filings or recordings (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines those that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31made only at a later date, 2009 which are so indicated on Exhibit E-11) will have been made. No filing or such later date as recording other than the Administrative Agent may agree in recording of the exercise applicable Mortgages with the county recorder of its reasonable discretion (it being understood Xxxxxxx, Xxxxxxxx and agreed that Wyoming Counties of the failure State of New York is necessary to deliver such Mortgages by create the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real interest, title or Liens on all Mortgaged Property owned by the Credit Parties subject thereto, and on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable or immediately after the Effective Financial Closing Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to , such filing will be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)made.
Appears in 1 contract
Samples: Financing Agreement (Noble Environmental Power LLC)
Collateral. (aA) Subject to . The obligations of Borrower under the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) Loan Documents shall be secured by a perfected first priority security interest to be subject at all times to first priority, perfected Liens in favor of held by the Administrative Agent for the benefit of the Holders of Secured Obligations Lenders in the Collateral, including the initial Collateral with respect to secure the Obligations in accordance Initial Collateral Properties and such additional Collateral with the terms and conditions of the respect to additional Qualifying Collateral DocumentsPool Properties, subject in all cases as described below, as shall be evidenced from time to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned time by the Security Documents. The Mortgages on the Initial Collateral Properties shall be executed, delivered and recorded not later than the ninetieth (90th) day after the Amendment Effective Date. Borrower or any other Credit Party shall also provide to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure not later than such ninetieth (90th) day after the Obligations in accordance with the terms and conditions of the Collateral Documents Amendment Effective Date (i) such insurance certificates, title insurance policies, surveys (which if no material changes to the extentimprovements thereon have occurred, may be older surveys accompanied by an affidavit of no change from the Borrower), environmental assessments, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date due diligence materials as the Administrative Agent may agree shall reasonably require for each Initial Collateral Property, in addition to a written opinion of the exercise Borrower’s counsel addressed to the Lenders in a form reasonably satisfactory to the Administrative Agent on behalf of its reasonable discretion the Lenders regarding any required Mortgage (it being understood the “Required Diligence”) and agreed (ii) a written confirmation that as of such date all of the failure representations and warranties contained in Section 5.23 hereof continue to deliver such Mortgages by be true and correct in all material respects with respect to the date ultimately required Initial Collateral Properties. Appraisals of the Initial Collateral Properties shall be ordered by the Administrative Agent not later than the fifteenth (15th) day after the Amendment Effective Date and shall constitute a Default under clause (d)(i) of Article VII hereof) with respect be distributed to the Fee Owned Real Property owned Lenders upon receipt, but shall be subject to approval by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as on behalf of the lienholder on Lenders only. Borrower shall have the Effective Date need option to order updates to the Appraisals of the Initial Collateral Properties to be retitled delivered to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder for distribution to the extent Lenders not later than September 30, 2009. Borrower shall pay for all Appraisals of the Borrower is in compliance with Initial Collateral Properties and the Mortgage and Vehicle Title Requirement)Qualifying Collateral Properties required hereunder.
Appears in 1 contract
Samples: Credit Agreement (Inland Western Retail Real Estate Trust Inc)
Collateral. (a) Subject As security for all indebtedness of Borrower to the limitations on property or assets acquired after the Effective Date set forth Bank subject hereto, except Term Loan C, Borrower hereby grants to Bank security interests of first priority in Section 5.13all Borrower's accounts receivable and other rights to payment, the Borrower willgeneral intangibles, inventory, fixtures, and will cause each other Credit Party toequipment. As security for all indebtedness of Borrower to Bank subject hereto, (i) cause except Term Loan C, Borrower hereby grants to Bank a lien of not less than first priority on that certain real property located at 1555 NE Burnside Street, Gresham, Xxxxxx. Xx security for all indebtedness of Borrower to Bank under Term Loan C, Borrower hereby grants to Bank and confirms its owned grant to Bank of a lien of not less than first priority on that certain real property (located at 1385 S. Capitol Boulevard, Boise, Xxxxx. Xx xxxxxxxx xxx xxx xxxxbtedness of Borrower to Bank subject hereto, except Term Loan C, Borrower hereby grants to Bank a lien of not less than first priority on that certain real property located at 3411 184th Street SW, Lynnwood, Xxxxxxxxxx xxx 0000 X. Xxxxxx Xxxxxx, Xxxxma, Wxxxxxxxxx. All of the foregoing shall be evidenced by and subject to the exceptions contained herein terms of such security agreements, financing statements, deeds of trust and other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall reimburse Bank immediately upon demand for all costs and expenses incurred by Bank in connection with any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit foregoing security, including without limitation, filing and recording fees and costs of the Holders of Secured Obligations to secure the Obligations in accordance with the terms appraisals, audits and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)title insurance.
Appears in 1 contract
Collateral. (a) Subject to the limitations The Obligations shall be secured by valid, perfected, and enforceable Liens on property or assets acquired after the Effective Date set forth in Section 5.13all right, title, and interest of the Borrower willand each Domestic Subsidiary in all of their accounts, chattel paper, instruments, documents, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory, equipment, fixtures, commercial tort claims, real estate and certain other Property, whether now owned or hereafter acquired or arising, and will cause each other Credit Party to, all proceeds thereof; provided that: (i) cause all until a Default or Event of its owned property (subject to the exceptions contained herein Default has occurred and in any Collateral Document is continuing and excluding the Excluded Assets) to be subject at all times to first prioritythereafter until otherwise required by Bank, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned on local pxxxx cash accounts maintained by the Borrower or any other Credit Party and its Domestic Subsidiaries in proximity to their operations need not be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the total amount on deposit at any one time not so perfected shall not exceed $10,000 in the aggregate and Liens on payroll accounts maintained by the Borrower hereby agrees and its Domestic Subsidiaries need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligations, (ii) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by Bank, Liens on vehicles which are subject to use its best efforts to cause a certificate of title law need not be perfected provided that the delivery total value of such Mortgages as soon as reasonably practicable after property at any one time not so perfected shall not exceed $250,000 in the Effective Date; aggregate, and (4iii) no vehicle titles for unless otherwise required by Bank during the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder existence of any Event of Default, Liens on the Effective Date need to be retitled to reflect Voting Stock of a Foreign Subsidiary which, if granted, would cause a Material Adverse Effect on the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles Borrower’s federal income tax liability shall be required hereunder limited to 66% of the total outstanding Voting Stock of such Foreign Subsidiary. The Borrower acknowledges and agrees that the Liens on the Collateral shall be valid and perfected first priority Liens subject, however, to the extent proviso appearing at the Borrower is end of the preceding sentence, in compliance with the Mortgage each case pursuant to one or more Collateral Documents from such Persons, each in form and Vehicle Title Requirement).substance satisfactory to Bank. 726721136.8 18564250
Appears in 1 contract
Samples: Credit Agreement (Cynergistek, Inc)
Collateral. As security for all indebtedness and other obligations of Borrower to Bank, other than indebtedness that is excluded from such secured obligations by the terms of the security agreement(s) required hereunder, Borrower shall grant, and hereby confirms its prior grant, to Bank security interests of first priority in (ai) Subject all Borrower’s accounts receivable and other rights to payment, accounts (including without limitation the BBSI Collateral Account), general intangibles, inventory and equipment, (ii) all financial assets credited to the limitations on BBSI Collateral Account; (iii) all security entitlements with respect to the financial assets credited to the BBSI Collateral Account; (iv) any and all other investment property or assets acquired after maintained or recorded in the Effective Date set forth in Section 5.13, the Borrower willBBSI Collateral Account; and (v) all replacements or substitutions for, and will cause each other Credit Party to, (i) cause all of its owned property (subject to the exceptions contained herein and in any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor proceeds of the Administrative Agent for sale or the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documentsdisposition of, subject in all cases to Permitted Liens. Without limiting the generality any of the foregoing, including , without limitation, cash proceeds. As used herein, the terms “security entitlement,” “financial asset” and “investment property” shall have the respective meanings set forth in the Oregon Uniform Commercial Code. As security for all indebtedness and other obligations of Borrower will to Bank under Term Loan 1, Borrower shall grant, and hereby confirms its prior grant, to Bank a lien of not less than first priority on that certain real property located at 8000 XX Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000. As security for all indebtedness and other obligations of Borrower to Bank under the Chubb Letter of Credit, Borrower shall cause the Applicable Pledge Percentage ASSOCIATED INSURANCE COMPANY FOR EXCESS, an Arizona corporation (“AICE”) to grant to Bank security interests of first priority in all AICE’s accounts receivable and other rights to payment, accounts, general intangibles, inventory and equipment, and all replacements or substitutions for, and proceeds of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by sale or the Borrower or disposition of, any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent foregoing, including without limitation, cash proceeds. All of the foregoing shall be evidenced by and subject to secure the Obligations in accordance with the terms of such security agreements, financing statements, deeds or mortgages, and conditions other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall pay to and reimburse Bank immediately upon demand the full amount of all charges, costs and expenses (to include fees paid to third parties and all allocated costs of Bank personnel), expended or incurred by Bank in connection with any of the Collateral Documents to the extentforegoing security, including without limitation, filing and recording fees and costs of appraisals, collateral exams, audits, inspections, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)title insurance.
Appears in 1 contract
Collateral. (a) Subject to The Obligations and the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause all of its owned property Hedge Obligations (subject to the exceptions contained herein provisions set forth in the definition of Security Documents) shall be secured by a perfected first priority lien and in any Collateral Document and excluding the Excluded Assets) security interest to be subject at all times to first priority, perfected Liens in favor of held by the Administrative Agent for the benefit of the Holders of Secured Obligations Lenders on the Collateral, pursuant to secure the Obligations in accordance with the terms and conditions of the Collateral Security Documents, and in each case subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the If Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower enters into any interest rate agreements or hedging agreements which are in any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents manner related to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, Loans or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support the Facility, Borrower agrees to assign the same to Agent, for the benefit of the Holders Lenders, by entering into Agent’s reasonable form of Secured Obligations assignment of interest rate agreements or hedging agreements at the time Borrower enters into such agreements. The Borrower shall (and shall cause IR OpCo) to comply, in all material respects, with the terms and provisions of the Security Documents, including, without limitation, with respect to all additional Collateral to be provided to Agent, for the benefit of Lenders, as and when therein provided, on account of any and all additional Subsidiaries of Borrower and/or IR OpCo which shall exist from and after the Effective Date. Borrower shall provide Agent with at least five (5) Business Days’ notice prior to the Borrower and/or IR OpCo acquiring or creating any such additional Borrower Subsidiary, together with such information, documents, and materials reasonably requested by Agent (including, without limitation, ownership certificates, stock/transfer powers, and other documentation required to be provided to Agent pursuant to legally validthe terms and provisions of the Ownership Interest Pledge, binding the Distribution Interest Pledge, or any other applicable Security Document, including, without limitation, all “know your customer” and enforceable other materials reasonably requested by Agent to ensure that each such Borrower Subsidiary is in compliance with §6.1(e)). Without limiting the foregoing or the terms and provisions of each Ownership Interest Pledge Agreements; and each Distribution Interest Pledge (2and as further provided therein) no Mortgages covering real property other than Fee Owned Real Property shall be required provided hereunder, with respect to each additional Borrower Subsidiary which is established from and no Mortgages after the Effective Date, Borrower shall, or shall be required hereunder cause IR OpCo and/or such Borrower Subsidiary, as applicable (in each case to the extent such Mortgages are not readily obtainable under relevant applicable law Ownership Interest Pledge, Distribution Interest Pledge, or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit Guaranty of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required is permitted to be delivered hereunder until December 31provided (and/or not prohibited from being provided) as reasonably determined in good faith), 2009 (w) to confirm to Agent the applicable Ownership Interest Pledge or such later date as the Administrative Agent may agree Distribution Interest Pledge in the exercise Equity Interests of its reasonable discretion such Borrower Subsidiary, and the ability of such Borrower Subsidiary to enter into a Guaranty of Obligations, (it being understood x) to provide such other stock or ownership certificates, executed transfer powers, and agreed that the failure to deliver such Mortgages by the date ultimately documentation (as further provided therein) as reasonably required by Agent to perfect or vest more securely its pledge and security interest to and in the Administrative Agent shall constitute applicable “Collateral” (as defined in each such applicable Ownership Interest Pledge or Distribution Interest Pledge), (y) to, if applicable, provide written notice to, or obtain consent of, each lender or other third party required for it to grant the applicable Ownership Interest Pledge, Distribution Interest Pledge, or Guaranty, and (z) if applicable, to execute and deliver a Default under clause (d)(i) of Article VII hereof) with respect corresponding joinder to the Fee Owned Real Property owned Guaranty, in form and substance reasonably satisfactory to Agent , together with all “know your customer” and other materials reasonably requested by the Credit Parties on the Effective Date; provided Agent to ensure that the each such Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower Subsidiary is in compliance with the Mortgage and Vehicle Title Requirement§6.1(e).
Appears in 1 contract
Collateral. As security for all indebtedness of Borrower to Bank, Borrower hereby grants to Bank security interests of first priority (aexcept for such prior liens as may be permitted hereunder) Subject in all Borrower's accounts receivable, rights to payment, general intangibles, deposit accounts, tradenames, trademarks, copyrights, patents, chattel paper, documents, instruments, inventory and equipment and all proceeds of the foregoing. In addition to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13foregoing, the as security for all indebtedness of Borrower willto Bank, and will Borrower shall cause each present and future Subsidiary (as defined below) other Credit Party tothan Natrol Real Estate, Inc. and Natrol Real Estate, Inc. II to grant to Bank security interests of first priority (iexcept for such prior liens as may be permitted hereunder) cause in all of its owned property (such Subsidiary's accounts receivable, rights to payment, general intangibles, deposit accounts, tradenames, trademarks, copyrights, patents, chattel paper, documents, instruments, inventory and equipment and all proceeds of the foregoing. Borrower acknowledges and agrees that the indebtedness of Borrower to Bank which is secured by the security agreements executed in connection herewith includes, without limitation, all indebtedness of Borrower to Bank which is subject hereto and all indebtedness of Borrower to Bank arising under the Swap Agreements. BORROWER UNDERSTANDS AND AGREES THAT BORROWER'S OBLIGATIONS AND LIABILITIES UNDER THE SWAP AGREEMENTS WHICH ARE SECURED HEREBY MAY EXCEED THE SWAP RESERVE AMOUNTS ESTABLISHED HEREUNDER AND SUCH SECURED OBLIGATIONS AND LIABILITIES ARE NOT LIMITED TO THE SWAP RESERVE AMOUNTS. All of the foregoing shall be evidenced by and subject to the exceptions contained herein terms of such security agreements, financing statements and other documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall reimburse Bank immediately upon demand for all costs and expenses incurred by Bank in connection with any Collateral Document and excluding the Excluded Assets) to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit foregoing security, including without limitation, filing and recording fees and costs of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)audits.
Appears in 1 contract
Samples: Credit Agreement (Natrol Inc)
Collateral. The Administrative Agent (aor its counsel) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, shall have received (i) cause all certificates evidencing Equity Interests of wholly-owned Domestic Subsidiaries that are Material Subsidiaries of Holdings (to the extent available to Holdings) and the Target and its owned property Domestic Subsidiaries (in the case of the Target and its Domestic Subsidiaries, to the extent delivered to Holdings by the Target prior to the Closing Date), to the extent certificated and required to be pledged as set out in the Loan Documents, and (ii) copies of UCC financing statements for entities organized in the United States. Notwithstanding anything in this Agreement to the contrary, it is understood that only Holdings, the Borrowers and the other Loan Parties organized under the laws of the United States shall be required to provide guarantees and Collateral (subject to the exceptions contained herein terms set forth in this paragraph) on the Closing Date and in the other Loan Parties may instead provide guarantees and Collateral within forty-five (45) Business Days after the Closing Date (subject to extensions to be reasonably agreed upon by the Administrative Agent), and to the extent any Collateral Document (including the grant or perfection of any security interest, other than (x) the delivery of certificates evidencing Equity Interests of wholly-owned Domestic Subsidiaries that are Material Subsidiaries of Holdings (to the extent available to Holdings) and excluding the Excluded Assets) Target and its Domestic Subsidiaries (in the case of the Target and its Domestic Subsidiaries, to the extent delivered to Holdings by the Target prior to the Closing Date), to the extent certificated and required to be subject at all times pledged as set out in 143 the Loan Documents, and (y) any Collateral the security interest in which may be perfected by the filing of a UCC financing statement for entities organized in the United States) is not or cannot reasonably be provided on the Closing Date after Holdings’ use of commercially reasonable efforts to first prioritydo so or without undue burden or expense, perfected Liens in favor then the provision of such collateral and perfection therein shall not constitute a condition precedent to the availability of the Administrative Agent for Loans on the benefit of Closing Date, but may instead be provided or perfected within ninety (90) days after the Holders of Secured Obligations to secure the Obligations Closing Date (in accordance with the terms and conditions of the Collateral Documentseach case, subject in all cases to Permitted Liensextensions to be reasonably agreed upon by the Administrative Agent). Without limiting the generality of the foregoingprovisions of Section 9.03(b), for purposes of determining compliance with the Borrower will cause conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or the Applicable Pledge Percentage of the issued and outstanding Capital Stock (be satisfied with, each document or other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party matter required thereunder to be subject at all times consented to or approved by or acceptable or satisfactory to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by Lender unless the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect have received notice from such Lender prior to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use proposed Closing Date specifying its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement)objection thereto.
Appears in 1 contract
Samples: Credit Agreement (Icon PLC)
Collateral. The Obligations, Hedging Liability, and Funds Transfer and Deposit Account Liability shall be secured by (a) Subject to valid, perfected and enforceable Liens on all right, title, and interest of the limitations Company and each Subsidiary in all capital stock and other equity interests held by such Person in each of its Subsidiaries, whether now owned or hereafter formed or acquired, and all proceeds thereof, and (b) valid, perfected, and enforceable Liens on property or assets acquired after all right, title, and interest of the Effective Date set forth Company and each Subsidiary in Section 5.13all accounts, chattel paper, instruments, documents, general intangibles, letter of credit rights, supporting obligations, deposit accounts, investment property, inventory and commercial tort claims (collectively, the Borrower will"Working Capital Assets"), whether now owned or hereafter acquired or arising, and will cause each other Credit Party toall proceeds thereof; provided, however, that: (i) until a Default or Event of Default has occurred and is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on local pxxxx cash accounts maintained by the Company and its Subsidiaries in proximity to their operations need not be perfected, provided that the total amount on deposit at any one time not so perfected shall not exceed $1,000,000 in the aggregate and Liens on payroll accounts maintained by the Company and its Subsidiaries need not be perfected provided the total amount on deposit at any time does not exceed the current amount of their payroll obligations, (ii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens on the Voting Stock of a Foreign Subsidiary which, if granted, would cause all a material adverse effect on the Company’s federal income tax liability shall be limited to 65% of its owned property the total outstanding Voting Stock of such Foreign Subsidiary, (subject iii) unless otherwise required by the Administrative Agent or the Required Lenders during the existence of any Event of Default, Liens need not be granted on the Working Capital Assets of a Foreign Subsidiary which, if granted, would cause a material adverse effect on the Company’s federal income tax liability, (iv) unless otherwise required by the Administrative Agent or the Required Lenders, Foreign Subsidiaries need not grant to the exceptions contained herein Administrative Agent Liens on the capital stock or other equity interests held by such Foreign Subsidiary in another Foreign Subsidiary, (v) until a Default or Event of Default has occurred and in any is continuing and thereafter until otherwise required by the Administrative Agent or the Required Lenders, Liens on U.S. general intangibles, to the extent perfected by recording an instrument with the U.S. Patent and Trademark Office, need only be perfected on material U.S. general intangibles and (vi) unless otherwise required by the Administrative Agent or the Required Lenders, Liens need not be granted on the capital stock of Brigitta’s Import Company so long as such entity is an unlimited liability company organized under the laws of the Canadian province of Nova Scotia. The Credit Parties acknowledge and agree that the Liens on the Collateral Document and excluding the Excluded Assets) shall be granted to be subject at all times to first priority, perfected Liens in favor of the Administrative Agent for the benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions holders of the Collateral DocumentsObligations, the Hedging Liability, and the Funds Transfer and Deposit Account Liability and shall be valid and perfected first priority Liens subject in all cases however, to Permitted Liens. Without limiting the generality proviso appearing at the end of the foregoingpreceding sentence and to Liens permitted by Section 8.8 hereof, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of in each Pledge Subsidiary directly owned by the Borrower case, pursuant to one or any other Credit Party to be subject at all times to a first priority, perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the more Collateral Documents from such Persons, each in form and substance satisfactory to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title Requirement).
Appears in 1 contract
Samples: Credit Agreement (Rc2 Corp)
Collateral. (a) Subject to The Collateral Agent shall have received on the limitations on property or assets acquired after the Effective Closing Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause appropriately completed copies of UCC financing statements naming each of the Company and the Guarantor as a debtor and the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the UCC of all jurisdictions as may be necessary or, in the reasonable opinion of the Collateral Agent and its owned property (subject counsel, desirable to perfect the security interests of the Collateral Agent pursuant to the exceptions contained herein Security Agreement, (ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements, if any, necessary to release all Liens (as defined in the Time of Sale Document and the Final Offering Circular) (other than Permitted Liens (as defined in the Time of Sale Document and the Final Offering Circular)) of any Person in any collateral described in any Security Agreement previously granted by any Person, (iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or the Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Document, other than such financing statements that evidence Permitted Liens (as defined in the Time of Sale Document and excluding the Excluded AssetsFinal Offering Circular), (iv) such other approvals, opinions, or documents as the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Collateral Agent, and the Initial Purchaser shall have received a copy of such documents (v) the Collateral Agent and its counsel shall be subject at all times to first priority, perfected Liens satisfied that (i) the Lien (as defined in the Time of Sale Document and the Final Offering Circular) granted in favor of the Administrative Agent Collateral Agent, for the benefit of the Holders holders of Secured Obligations to secure the Obligations Securities (as defined in accordance with the terms Time of Sale Document and conditions the Final Offering Circular) in the Collateral is of the priority described in the Time of Sale Document and the Final Offering Circular; and (ii) no Lien (as defined in the Time of Sale Document and the Final Offering Circular) exists on any of the Collateral Documents, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock (other than Excluded Assets) of each Pledge Subsidiary directly owned by the Borrower or any other Credit Party to be subject at all times to a first priority, perfected Lien created in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extentAgent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders holders of Secured Obligations the Securities (as defined in the Time of Sale Document and the Final Offering Circular), pursuant to legally valida Collateral Document, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder in each case subject to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; Permitted Liens (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree defined in the exercise Time of its reasonable discretion (it being understood Sale Document and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereof) with respect to the Fee Owned Real Property owned by the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles for the motor vehicles owned by the Credit Parties and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder to the extent the Borrower is in compliance with the Mortgage and Vehicle Title RequirementFinal Offering Circular).
Appears in 1 contract
Collateral. (a) Subject to the limitations on property or assets acquired after the Effective Date set forth in Section 5.13, the Borrower will, and will cause each other Credit Party to, (i) cause Except for actions permitted to be taken after the Closing Date pursuant to Section 6.13, all of its owned property filings, recordations and any other actions in connection with the Collateral shall have been duly made so that such Liens created under the Security Documents shall (subject w) with respect to the exceptions contained herein Mexican Collateral Trust, constitute valid and enforceable rights as beneficiary in any first place (fideicomisario en primer lugar) in favor of the Mexican Collateral Document Agent (x) with respect to the Trust Agreements (other than the Mexican Collateral Trust and excluding the Excluded AssetsColombian Security Trust Agreement) to be subject at all times to and the Equity Interest Pledge Agreements (other than the Colombian Share Pledge Agreements and the Peruvian Pledge Agreements), constitute valid and enforceable first priority, perfected priority Liens in favor of the Administrative Agent respective Collateral Agents or Trustees, as applicable, for the ratable benefit of the Holders of Secured Obligations to secure the Obligations in accordance with the terms and conditions of the Collateral DocumentsLenders, subject in all cases to Permitted Liens. Without limiting the generality of the foregoing, the Borrower will cause the Applicable Pledge Percentage of the issued and outstanding Capital Stock no other Liens (other than Excluded Assets) of each Pledge Subsidiary directly owned non-consensual Liens permitted by the Borrower or any other Credit Party to be subject at all times to a first prioritySection 7.01 which do not secure Indebtedness), perfected Lien in favor of the Administrative Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents to the extent, and within such time period as is, reasonably required by the Administrative Agent. Notwithstanding the foregoing: (1) no Pledge Agreement in respect of the Capital Stock of any Pledge Subsidiary shall be required hereunder to the extent such pledge thereunder would be prohibited by applicable law, or the Administrative Agent or its counsel reasonably determines that such pledge would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Pledge Agreements; (2) no Mortgages covering real property other than Fee Owned Real Property shall be required hereunder, and no Mortgages shall be required hereunder to the extent such Mortgages are not readily obtainable under relevant applicable law or if the Administrative Agent or its counsel reasonably determines that such Mortgage would not provide material credit support for the benefit of the Holders of Secured Obligations pursuant to legally valid, binding and enforceable Mortgages; (3) no Mortgages are required to be delivered hereunder until December 31, 2009 or such later date as the Administrative Agent may agree in the exercise of its reasonable discretion (it being understood and agreed that the failure to deliver such Mortgages by the date ultimately required by the Administrative Agent shall constitute a Default under clause (d)(i) of Article VII hereofy) with respect to the Fee Owned Real Property owned by Colombian Share Pledge Agreements constitute a Lien in respect of future assets (bienes futuros) in favor of the Credit Parties on the Effective Date; provided that the Borrower hereby agrees to use its best efforts to cause the delivery of such Mortgages as soon as reasonably practicable after the Effective Date; (4) no vehicle titles Colombian Collateral Agent, for the motor vehicles owned by ratable benefit of the Credit Parties Lenders and titled to reflect the Administrative Agent as the lienholder on the Effective Date need to be retitled to reflect the Administrative Agent as the lienholder; and (5) no Mortgages or vehicle titles shall be required hereunder with respect to the extent Colombian Commercial Establishment Pledge Agreement, constitute a Lien over commercial establishments denominated “Promotora Médica las Américas” with registration number 21–202703–02 of the Borrower is Chamber of Commerce of Medellín, “Clínica las Américas” with registration number 21–226323–02 of the Chamber of Commerce of Medellín and “Centro Médico las Américas – Sede City Plaza” with registration number 159880 of the Chamber of Commerce of Aburrá Sur for the ratable benefit of the Lenders (z) with respect to the Peruvian Pledge Agreements pre-constitute a Lien in compliance with respect of the Mortgage and Vehicle Title Requirement)Peruvian Pledged Shares.
Appears in 1 contract
