Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA. (b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11. (c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. (d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below. (e) [Reserved.] (f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties. (g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents. (h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual Fair Market Value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(ci) Promptly notify the Administrative Agent Grant and cause each of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on such Owned on, any Material Real Property of the Borrower or such 120 Subsidiary Loan Parties, as applicable, that are not covered by any then-existing MortgagesMortgaged Property as of the Closing Date, subject to any limitations required by local law the extent acquired after the Closing Date, within 90 days after such acquisition (other than assets that or such later date as the Administrative Agent may agree in their reasonable discretion) pursuant to documentation in such form as is reasonably satisfactory to the Administrative Agent and the Borrower (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(ceach, an “Additional Mortgage”), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, and (iii) deliver to the Collateral Agent an updated Schedule 1.01(e) to the Original Credit Agreement reflecting such additional Mortgaged Properties. Unless otherwise waived by the Administrative Agent, with respect to each such Additional Mortgage, the Borrower shall cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 90 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization)number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to that is not a registered organization; provided that the extent relevant in the applicable jurisdiction of organization); provided, that Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a 121 valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.11 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) motor vehicles and other assets subject to certificates of title, letter of credit rights (in each case, other than to the contrary extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and commercial tort claims with a value of less than $10,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(b) and such restriction is binding on such assets on the Closing Date or on the date of acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” trademark applications for which a verified Statement of Use or an Amendment to Allege Use has not been filed with the United States Patent and Trademark Office, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, and any other assets subject to Liens securing Permitted Securitization Financings, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j) or (ii) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other Requirements of Law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such prohibition, provided, to the extent any such applicable anti assignments provisions of the Uniform Commercial Code override such anti assignment clause, the Administrative Agent agrees that its Lien on any such equipment or other asset is hereby subordinated to such Lien, (xiv) cash to secure letter of credit reimbursement obligations to the extent such letters of credit are permitted under this Agreement and prohibit the granting of a Lien, (xv) any segregated deposits that constitute Permitted Liens and are prohibited from being subject to other Liens, (xvi) assets sold in compliance with this Agreement to a person who is not a Subsidiary Guarantor, (xvii) assets owned by a Subsidiary Guarantor after the release of the guaranty of such Subsidiary Guarantor pursuant to this Agreement or the Intercreditor Agreement, (xviii) any deposit account that is used for the Security Documentssole purpose of making payroll and withholding tax 122 payments related thereto and other employee wage and benefits payments and accrued and unpaid employee compensation payments (including salaries, wages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), (xix) any Foreign Subsidiary to the extent that such grant of a security interest therein would result in any breach of corporate benefit, financial assistance, capital preservation, fraudulent preference, thin capitalization rules, or any other Loan Documentlaw or regulation (or analogous restriction) of the jurisdiction of organization of such person or result in any risk to the officers or directors of such person of a civil or criminal liability, (ixx) property and assets released in accordance with this Agreement or the Intercreditor Agreement, (xxi) all assets of Holdings other than Equity Interests in the Borrower directly held by Holdings and pledged pursuant to the Holdings Guarantee and Pledge Agreement and (xxii) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, (E) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (F) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (G) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the Fair Market Value (as determined in good faith by the Borrower) of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Sources: First Lien Credit Agreement
Further Assurances; Additional Security. (a) Execute any and all such further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Administrative Agent or Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Parties, and provide to the Collateral Administrative Agent, from time to time upon following the Administrative Agent’s reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created in the Collateral by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11[Reserved].
(c) Promptly notify the Administrative Agent following the acquisition of, and, following the reasonable written request of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will Agent, grant and cause each of the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on in, such Owned Material Real Property of the Borrower or any such Loan Parties as are not covered by any then-existing Mortgages, subject to any limitations required by local law the original Mortgages (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted , to the extent acquired after the Closing Date and having a value or purchase price at the time of acquisition in excess of $5,000,000 pursuant to this Section shall constitute a documentation in such form as is reasonably satisfactory to the Administrative Agent (each, an “Additional Mortgage”) and constituting valid and enforceable first-priority Lien, perfected Liens superior to and prior to the rights of all third persons subject to no other Liens except Permitted Liens as are permitted by Section 6.02, at the time of perfection thereof. Parent shall, record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, all Taxes (in full, all Taxesaccordance with Section 5.03), fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. With respect to each such Additional Mortgage, the Borrower shall deliver, or cause the applicable Loan Party to deliver, to the Administrative Agent contemporaneously therewith a title insurance policy or policies or marked up unconditional binder of title insurance in an amount equal to the fair market value of the Mortgaged Property, paid for by the Borrower or the applicable Loan Party, issued by a nationally recognized title insurance company insuring the Lien of each such Mortgage as a valid first Lien on the Mortgaged Property described therein, free of any other Liens except as permitted by Section 6.02 and Liens arising by operation of law, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request and a survey if reasonably available with respect to property outside the United States. Additionally, if applicable, Borrower shall deliver to the Administrative Agent a completed standard “life of loan” flood hazard determination form for each property encumbered by a Mortgage, and if the property is located in an area designated by the U.S. Federal Emergency Management Agency (or any successor agency) as having special flood or mud slide hazards, (i) a notification to the Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the National Flood Insurance Program (“NFIP”) created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973, the National Flood Insurance Reform Act of 1994 and the Flood Insurance Reform Act of 2004 is not available because the applicable community does not participate in the NFIP, (ii) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (iii) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance reasonably satisfactory to the Administrative Agent.
(d) Other than in In connection with (i) the case formation or acquisition of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch the Borrower that is formed a Domestic Subsidiary (other than an Excluded Subsidiary) or acquired after (ii) any existing direct or indirect subsidiary of the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary Borrower becoming a Subsidiary being deemed to constitute of the acquisition of Borrower that is a Domestic Subsidiary (other than an Excluded Subsidiary), (i) within 15 Business Days after the date of such formation, acquisition or Subsidiary becoming a Subsidiary of the Borrower that is formed or acquired a Domestic Subsidiary (or first becomes subject to other than an Excluded Subsidiary), notify the Administrative Agent and the Lenders thereof and, within 30 Business Days after such requirement) (date or such longer period as the Collateral Administrative Agent may shall agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (or as set forth in the case definition of a Domestic Subsidiary) or 60 days (in the case Collateral and Guarantee Requirement for such class of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionassets, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) belowSection 5.11(g).
(e) [Reserved].]
(fi) Furnish to the Collateral Administrative Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of following any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (number, provided, that to the extent relevant in the applicable jurisdiction required to maintain perfection of organization)such Collateral, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following after such change (or such longer later period as agreed by the Collateral Administrative Agent may agree in its sole discretionPermitted Discretion), under the Borrower will file (or direct an agent to file on its behalf) such Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code financing statements that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in such Collateral (to the extent intended to be created by the Security Documents by a filing of an “all assets” financing statement) and (ii) promptly notify the Administrative Agent if any material portion of the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Partiesis damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the Security other provisions of this Section 5.11 need not be satisfied with respect to Excluded Assets. For the avoidance of doubt, and without limitation, Section 5.11 shall apply to any division of a Loan Party required to become a Loan Party pursuant to the terms of the Loan Documents shall be subject and to exceptions and limitations set forth in the Security Documentsany allocation of assets to a series of a limited liability company.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case subject to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (including any owned Real Property (other than owned Real Property which is covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $5.0 million is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary other Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.09(g) or the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, Documents) will promptly as practicable (and in any event within 30 days) (i) promptly notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (where applicableiii) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.11Section, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11(g) below.
(c) Promptly notify the Administrative Agent Grant and cause each of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in and mortgages on in such Owned owned Real Property of the Borrower or any such Subsidiary Loan Parties as are not covered by any then-existing the original Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $10.0 million pursuant to which a Lien on such assets securing documentation substantially in the Obligations is not permitted or (ii) are not required form of the Mortgages delivered to become subject to the Liens of the Collateral Agent pursuant on the Closing Date or in such other form as is reasonably satisfactory to Section 5.11(gthe Collateral Agent (each, an “ Additional Mortgage ”) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a and constituting valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall; record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch Holdings or the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date and if such Subsidiary is formed a Domestic Subsidiary (other than a Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, an Insurance Subsidiary or acquired (an Immaterial Subsidiary designated by the Borrower as not a Loan Party) or a “first becomes subject to such requirement) tier” Special Purpose Securitization Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent may agree in its sole discretion)shall agree) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired, notify the Collateral Agent thereofand the Lenders thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Domestic Subsidiary (unless such Domestic Subsidiary is not a Wholly Owned Subsidiary) or “first tier” Special Purpose Securitization Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent shall agree) after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary (unless such Foreign Subsidiary is not a Wholly Owned Subsidiary) is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, structure or (C) in any Loan Party’s organizational identification number and (to the extent relevant in the applicable jurisdiction of organization), (Dii) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as promptly notify the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in if any applicable jurisdiction that are required in order for material portion of the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Partiesis damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the Security Documents shall other provisions of this Section 5.09 need not be subject satisfied with respect to exceptions (i) any Real Property held by the Borrower or any of its Subsidiaries as a lessee under a lease, (ii) any vehicle, (iii) cash, deposit accounts and limitations set forth securities accounts, (iv) any Insurance Subsidiary except to the extent that a pledge of the Equity Interests thereof is permitted by applicable law, or any Securitization Assets, (v) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Security Borrower or, in the case of any person which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, (vi) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien), (vii) (A) entities that become Subsidiaries (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary being designated as a Subsidiary being deemed to constitute the acquisition or formation of a Subsidiary) after the Closing Date if the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining a guarantee of the applicable Obligations from such entities is excessive in relation to the value to be afforded to the Lenders thereby or (B) those assets as to which the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining or perfecting a security interest in such assets are excessive in relation to the value of the security to be afforded thereby, including (w) the costs and legal and practical difficulties of obtaining such guarantees and security from Foreign Subsidiaries, (x) the costs of obtaining such guarantee or security interest, or perfecting such security interest, in relation to the value of the credit support to be afforded thereby, (y) general statutory limitations, financial assistance, corporate benefit, fraudulent preference, thin capitalization, retention of title claims and similar principles and (z) the fiduciary duties of directors, contravention of legal prohibitions or risk of personal or criminal liability on the part of any officer, (viii) perfection of any security interest in Collateral to the extent such perfection (or the steps required to provide such perfection) would have a material adverse effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course as permitted by the Loan Documents, (ix) perfection of any security interest in receivables or other Collateral to the extent such perfection would require notice to customers of Borrower and the Subsidiaries prior to the time that an Event of Default has occurred and is continuing, or (x) any real property acquired by the Borrower or any Subsidiary in the ordinary course of its relocation services business; provided , that, upon the reasonable request of the Administrative Agent, the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (v) and (vi) above.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestwritten request by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $10,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent in writing of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 120 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property pursuant to documentation substantially in the form of Exhibit K (with such changes to account for local law matters as are not covered reasonably consented to by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (ithe Administrative Agent) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which or otherwise in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) deliver, and shall cause each such applicable Subsidiary Loan Party to record deliver, for recording or file filing, with all required documentation, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such additional Mortgaged Properties and (iv) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (including, without limitation, pursuant to a Delaware LLC Division) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofin writing thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent in writing thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization)number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) motor vehicles and other assets subject to certificates of title, letter of credit rights (in each case, other than to the contrary extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and commercial tort claims with a value of less than $10,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in this Agreementcontemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the Security Documentsextent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other Loan Documentconsequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. §1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, and any other assets subject to Liens securing Permitted Securitization Financings, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa), (mm) or (oo) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), (xiv) all assets of Holdings other than Equity Interests of the Borrower directly held by Holdings and pledged pursuant to the Holdings Guarantee and Pledge Agreement and (xv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, (E) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (F) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (G) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case subject to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (including any owned Real Property (other than owned Real Property which is covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $5.0 million is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary other Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.09(g) or the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, Documents) will promptly as practicable (and in any event within 30 days) (i) promptly notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (where applicableiii) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.11Section, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11(g) below.
(c) Promptly notify the Administrative Agent Grant and cause each of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in and mortgages on in such Owned owned Real Property of the Borrower or any such Subsidiary Loan Parties as are not covered by any then-existing the original Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $10.0 million pursuant to which a Lien on such assets securing documentation substantially in the Obligations is not permitted or (ii) are not required form of the Mortgages delivered to become subject to the Liens of the Collateral Agent pursuant on the Closing Date or in such other form as is reasonably satisfactory to Section 5.11(gthe Collateral Agent (each, an “Additional Mortgage”) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a and constituting valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall; record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch Holdings or the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date and if such Subsidiary is formed a Domestic Subsidiary (other than a Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, an Insurance Subsidiary or acquired (an Immaterial Subsidiary designated by the Borrower as not a Loan Party) or a “first becomes subject to such requirement) tier” Special Purpose Securitization Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent may agree in its sole discretion)shall agree) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired, notify the Collateral Agent thereofand the Lenders thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Domestic Subsidiary (unless such Domestic Subsidiary is not a Wholly Owned Subsidiary) or “first tier” Special Purpose Securitization Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent shall agree) after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary (unless such Foreign Subsidiary is not a Wholly Owned Subsidiary) is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, structure or (C) in any Loan Party’s organizational identification number and (to the extent relevant in the applicable jurisdiction of organization), (Dii) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as promptly notify the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in if any applicable jurisdiction that are required in order for material portion of the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Partiesis damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the Security Documents shall other provisions of this Section 5.09 need not be subject satisfied with respect to exceptions (i) any Real Property held by the Borrower or any of its Subsidiaries as a lessee under a lease, (ii) any vehicle, (iii) cash, deposit accounts and limitations set forth securities accounts, (iv) any Insurance Subsidiary except to the extent that a pledge of the Equity Interests thereof is permitted by applicable law, or any Securitization Assets, (v) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Security Borrower or, in the case of any person which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, (vi) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien), (vii) (A) entities that become Subsidiaries (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary being designated as a Subsidiary being deemed to constitute the acquisition or formation of a Subsidiary) after the Closing Date if the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining a guarantee of the applicable Obligations from such entities is excessive in relation to the value to be afforded to the Lenders thereby or (B) those assets as to which the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining or perfecting a security interest in such assets are excessive in relation to the value of the security to be afforded thereby, including (w) the costs and legal and practical difficulties of obtaining such guarantees and security from Foreign Subsidiaries, (x) the costs of obtaining such guarantee or security interest, or perfecting such security interest, in relation to the value of the credit support to be afforded thereby, (y) general statutory limitations, financial assistance, corporate benefit, fraudulent preference, thin capitalization, retention of title claims and similar principles and (z) the fiduciary duties of directors, contravention of legal prohibitions or risk of personal or criminal liability on the part of any officer, (viii) perfection of any security interest in Collateral to the extent such perfection (or the steps required to provide such perfection) would have a material adverse effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course as permitted by the Loan Documents, (ix) perfection of any security interest in receivables or other Collateral to the extent such perfection would require notice to customers of Borrower and the Subsidiaries prior to the time that an Event of Default has occurred and is continuing, or (x) any real property acquired by the Borrower or any Subsidiary in the ordinary course of its relocation services business; provided, that, upon the reasonable request of the Administrative Agent, the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (v) and (vi) above.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute (i) As promptly as practicable, and in any event within the time periods after the Closing Date specified in Schedule 5.11 (or such later date as the Administrative Agent reasonably agrees to in writing), the Borrower shall deliver, or cause to be delivered, the documents or take the actions specified on Schedule 5.11 and (ii) after the Closing Date, the Borrower or any other Credit Party shall execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages Control Agreements and other documents and recordings of Liens in stock registries), that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Collateral Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Credit Party directly or indirectly acquires fee-owned real property after the Closing Date (with any fee-owned real property of (x) any Restricted Subsidiary Loan that is acquired after the Closing Date and becomes a Credit Party, or (y) “Darmantest Laboratories” Limited Liability Company if it is required to become a Credit Party after the Amendment Effective Date Closing Date, being deemed to have been acquired after the Closing Date) that has a fair market value (as determined by the Borrower in good faith) of $7.5 million or owned by more on an entity individual basis at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of acquisition of fee ownership of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of real property, the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) other Credit Party shall (i) notify the Collateral Administrative Agent and provide the Administrative Agent with a complete description of such property (including its legal description) reasonably promptly following the acquisition or ownership and thereof; (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause each such asset fee-owned real property to be subjected subject to a Lien (subject to any Permitted Liens) Mortgage securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense within one-hundred twenty days of the Loan Parties, subject to the final paragraph date of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time period as may be agreed by the Administrative Agent), provided that the maximum amount of the Obligations secured thereby shall not exceed 115% of the fair market value (as determined by the Borrower in good faith) of such fee-owned real property, plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered thereby or the lien thereof, expenses incurred by any Agent by reason of any default by the Borrower or such Credit Party under the terms thereof, together with interest thereon, all of which amounts shall be secured thereby; (iii) obtain an irrevocable written commitment to issue a mortgagee’s title policy or marked up unconditional binder for such insurance dated as of the date the applicable Mortgage is recorded (or local equivalent lender’s title insurance policies for real property outside of the United States), with endorsements (including zoning endorsements where available) as reasonably requested by the Administrative Agent shall agree to the extent available at commercially reasonable rates (the “Mortgage Policies”); (iv) to the extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys (or local equivalent) or deliver existing surveys together with affidavits of no-change to the title insurance company in its sole discretionlieu thereof, dated no more than thirty days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent; and (v) will grant and cause obtain customary opinions of local counsel to the applicable Loan Credit Parties to grant with respect to the Collateral Agent security interests enforceability and perfection of any such Mortgage in and mortgages on the states or provinces in which such Owned Real Property as fee-owned real properties are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) belowlocated.
(dc) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary “Darmantest Laboratories” Limited Liability Company being deemed to constitute have been acquired after the acquisition of Closing Date on any date it is required to become a SubsidiaryGuarantor hereunder), (i) within 15 Business Days thirty days after the date such Subsidiary subsidiary is formed or acquired (or first becomes subject to such requirement) longer period as may be agreed by the Administrative Agent), notify the Administrative Agent and the Lenders thereof and, within sixty days after the date such subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary subsidiary owned by or on behalf of the Borrower or any Loan other Credit Party, subject in each case to paragraph (ge) belowof this Section 5.11.
(ed) [Reserved.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable In each case, furnish to the Administrative Agent) Agent within thirty days thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, or (C) in any Loan Party’s organizational identification number (or equivalent) with respect to the extent relevant in Borrower and the applicable jurisdiction of organization), (D) in other Credit Parties; provided that the Borrower shall not effect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, UCC or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral (to the Collateral in which a security interest may be perfected by such filing, extent otherwise required hereunder) for the benefit of the applicable Secured PartiesParties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(e) The Collateral and Guarantee Requirement and the other provisions of this Section 5.11 need not be satisfied with respect to any Excluded Property or any exclusions and carve-outs from the perfection requirements set forth in the Second Lien Pledge and Security Agreement.
(f) With respect to real property, no perfection steps shall be required by any means other than (1) solely with respect to any properties subject to any mortgages on fee-owned real property not excluded from the Collateral pursuant to this Agreement (“Required Mortgages”), fixture filings pursuant to the UCC in the applicable UCC filing office of the relevant jurisdiction in which such fee-owned real property is located and (2) the recording of Required Mortgages in the applicable county offices referred to in the foregoing clause (1); provided that the maximum amount of the Obligations secured by the Required Mortgages shall not exceed 115% of the fair market value (as determined by the Borrower in good faith ) of such fee-owned real property, plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered thereby or the lien thereof, expenses incurred by any Agent by reason of any default by the Borrower or any Credit Party under the terms thereof, together with interest thereon, all of which amounts shall be secured thereby.
(g) If at any time the Borrower becomes and remains a subsidiary of any Parent Holding Company, cause each Parent Holding Company that directly holds Equity Interests of the Borrower to enter into a pledge agreement, in form and substance substantially similar to the Second Lien Pledge and Security Agreement (which pledge agreement shall include, (x) a guarantee by such Parent Holding Company of the Obligations of each Person other than such Parent Holding Company pursuant to guarantee terms substantially similar to the guarantee terms in Section 7 of this Agreement and (y) a covenant restricting such Parent Holding Company from creating, incurring or permitting to exist any Lien on its Equity Interests of the Borrower other than Liens to secure any Indebtedness of the Borrower and/or any Guarantor permitted to be secured by the Collateral pursuant to Section 6.2 of this Agreement), and deliver to the Collateral Agent (or a designated bailee thereof) all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, in each case within 30 days of each such Parent Holding Company acquiring such direct Equity Interests in the Borrower. Notwithstanding anything to the contrary in this Agreement, the Second Lien Pledge and Security Documents, Agreement or any other Loan Credit Document, (ix) the Administrative Agent Requisite Lenders may grant extensions of time for for, or waive the requirements to obtain, the creation or perfection of security interests in in, or the obtaining of title insurance (including title insurance) or and surveys with respect to to, particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Credit Parties on such date) where it reasonably determinesthey determine, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection the cost, burden or consequences (including adverse Tax consequences) of obtaining of or perfecting a security interest in such items cannot be accomplished without undue effort or expense on assets is excessive in relation to the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents practical benefit afforded thereby; and (iiy) Liens required to be granted from time to time pursuant to, or any other requirements of, to the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsCollateral Documents and, to the extent appropriate in the applicable jurisdictions, as otherwise agreed between the Requisite Lenders and the Borrower. Notwithstanding any provision of this Section 5.11 to the contrary, prior to the Discharge of Senior Priority Obligations, the requirements of this Section 5.11 to deliver any Collateral to the Collateral Agent shall be deemed satisfied by delivery of such Collateral to the First Lien Agent or the Senior Priority Representative (as such term is defined in the Cash Flow Intercreditor Agreement).
(h) [Reserved].
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (Lannett Co Inc)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If Borrower Holdco or any asset (other than of its Subsidiaries that are Loan Parties directly or indirectly acquires fee-owned Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or that, combined with all other fee-owned Real Property owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets Borrower Holdco and its Subsidiaries that are not required to become subject to Liens in favor Loan Parties at such time, has an aggregate fair market value of the Collateral Agent pursuant to the Security Documents $35.0 million or the Collateral and Guarantee Requirements)more, Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent thereof, (iiand upon the Administrative Agent’s written request, (A) cause each such fee-owned Real Property that has a fair market value of such acquisition $3.0 million or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset more to be subjected to a Lien (subject to any Permitted Liens) mortgage or deed of trust securing the Obligations byObligations, in form and substance reasonably acceptable to the Collateral Agent, (iiiB) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements where available) and in amounts reasonably acceptable to the Collateral Agent (the “Mortgage Policies”), (iv) to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent, (v) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Collateral Agent, including, without limitation, the insurance required by the terms of any mortgages or deeds of trust, (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such fee-owned Real Properties are located and (vii) take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.115.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph (e) of this Section 5.115.10; provided that in the case of this clause (b) (other than with respect to items required by law), the Administrative Agent or the Collateral Agent, as applicable, shall be deemed to be “reasonably satisfied” if the administrative agent or the collateral agent, as applicable, under the Term Loan Documents shall be reasonably satisfied.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch Borrower Holdco is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 five Business Days after the date such Subsidiary is formed or acquired, notify the Collateral Agent thereof and, within 20 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of Borrower Holdco or any of its Subsidiaries that is a Loan Party, subject in each case to paragraph (ge) belowof this Section 5.10.
(ei) [Reserved.]
(f) Furnish In each case other than in connection with the Contribution, furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) five Business Days prior written notice of any change (A) in any Loan Party’s (A) corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organizationequivalent); provided, provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the applicable Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Parties and (ii) Liens required to be granted from time to time pursuant to, promptly notify the Collateral Agent if any material portion of the Collateral is damaged or any other requirements of, the destroyed.
(e) The Collateral and Guarantee Requirement and the Security Documents shall other provisions of this Section 5.10 need not be subject satisfied with respect to exceptions any Excluded Assets or Excluded Equity Interests (each as defined in the Collateral Agreement) or any exclusions and limitations carve-outs from the perfection requirements set forth in the Security DocumentsCollateral Agreement.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent Borrower shall, and shall cause each such applicable Subsidiary Loan Party other Obligor to, from time to record or file the Mortgage or instruments related thereto in such manner time, promptly execute and in such places as is required by law deliver to establish, perfect, preserve and protect the Liens in favor of the Collateral Administrative Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan PartyLenders, subject in each case to paragraph (g) below.
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the additional Security Documents, or statements, documents, agreements and reports as any other Loan Document, (i) the Administrative Agent Lender may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant toreasonably request to evidence, perfect, convey, grant, assign, transfer, preserve, protect, confirm or otherwise implement or assure the security for repayment of the Obligations; provided that no Obligor shall be required to provide any other requirements of, the different type of Collateral and Guarantee Requirement and from that contemplated for such by the Security Documents to which it is a party as of the Closing Date. Borrower shall, and shall be subject cause each other Obligor to, from time to exceptions and limitations set forth time, promptly take such additional actions as the Requisite Lenders may reasonably require from time to time in order to carry out more effectively the purposes of the Security Documents.
(hii) [Reserved]Notwithstanding anything herein to the contrary, to the extent this Agreement or any other Loan Document purports to require any Credit Party to grant to Administrative Agent, on behalf and for the ratable benefit of the Secured Parties, a security interest in the FCC Licenses of such Credit Party, Administrative Agent, on behalf and for the ratable benefit of the Secured Parties, shall only have a security interest in such licenses at such times and to the extent that a security interest in such licenses is permitted under applicable law. Notwithstanding anything to the contrary set forth herein, Administrative Agent, on behalf of the Secured Parties, agrees that to the extent prior FCC approval is required pursuant to the Communications Act for (a) the operation and effectiveness of any grant, right or remedy hereunder or under any Loan Document or (b) taking any action that may be taken by Administrative Agent or Requisite Lenders hereunder or under any Loan Document, such grant, right, remedy or actions will be subject to such prior FCC approval having been obtained by or in favor of Administrative Agent, on behalf and for the ratable benefit of the Secured Parties. Borrower agrees that, during the continuance of an Event of Default and at Administrative Agent’s or Requisite Lenders’ request, Borrower shall promptly file, or cause to be filed, such applications for approval and shall take all other and further actions required by the Administrative Agent or Requisite Lenders, on behalf and for the ratable benefit of the Secured Parties, to obtain such FCC approvals or consents as are necessary to transfer ownership and control to Administrative Agent or trustee or other fiduciary acting in lieu of Administrative Agent in order to ensure compliance with the Communications Act, on behalf and for the ratable benefit of the Secured Parties, or their successors or assigns, of the FCC Licenses held by it.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Beasley Broadcast Group Inc)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 90 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property as are not covered by any then-existing Mortgages, subject pursuant to any limitations required by documentation substantially in the form of Exhibit K (with such changes to account for local law (other than assets that (imatters) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which or otherwise in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties and (iv) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines, construction and earth moving equipment and other assets subject to certificates of title other than to the contrary extent a Lien on such assets can be perfected by filing a UCC-1, (y) letter of credit rights (in this Agreementeach case, other than to the extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security DocumentsDocuments or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other Loan Documentasset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), in each case, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition and (xiv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers or collateral access agreements shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, nor shall the Administrative Agent be authorized to take any action outside the United States to create any security interest in assets located or titled outside of the United States or to perfect or make enforceable any security interests in any such assets, (E) share certificates of any person that is not a Subsidiary or of any Foreign Subsidiary shall not be required to be delivered, (F) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (G) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (H) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Parties, and provide to the Collateral AgentAgent , from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Estate after the Amendment Effective Closing Date that, combined with all other fee-owned Real Estate has an aggregate fair market value of $5,000,000 or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements)more, Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause all such asset fee-owned Real Estate to be subjected to a Lien (subject to any Permitted Liens) mortgage or deed of trust securing the Obligations byObligations, in form and substance reasonably acceptable to the Agent, (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements where available) and in amounts reasonably acceptable to the Agent (the “Mortgage Policies”), (iv) to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Agent, certified to the Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Agent, (v) provide (1) “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations, (2) notices, in the form required under the flood insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each Loan Party, and, (3) if any improved real property encumbered by any Mortgage is located in a special flood hazard area, a policy of flood insurance that (A) covers such improved real property, (B) is written in an amount not less than the outstanding principal amount of the Indebtedness secured by such Mortgage reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the flood insurance Laws, whichever is less, (C) naming the Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Agent, and (D) is otherwise on terms satisfactory to the Agent, and (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such fee-owned Real Estate are located and (vii) take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.116.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent If any additional Subsidiary of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (with any or if an Immaterial Subsidiary Redesignation resulting in an or Unrestricted Subsidiary becoming a Subsidiary being deemed ceases to constitute the acquisition of a Subsidiaryqualify as such), (i) within 15 five Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period entity ceases to qualify as the Collateral Agent may agree in its sole discretion)an Immaterial Subsidiary or an Unrestricted Subsidiary, notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired or such entity ceases to qualify as an Immaterial Subsidiary or an Unrestricted Subsidiary (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree), to the extent such Person does not constitute a CFC or qualify as an Immaterial Subsidiary or Unrestricted Subsidiary, cause the Collateral and Guarantee Requirement Guaranty Requirements to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any a Loan Party, subject in each case Party as and to paragraph (g) belowthe extent required under the Security Documents.
(ei) [Reserved.]
In each case furnish the Agent five (f5) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) Business Days prior written notice of any change (A) in any Loan Party’s (A) corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organizationequivalent); provided, provided that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the applicable Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable firstsecond-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if (i) any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) either the First Lien Collateral Agent or the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved]The Dutch Borrower shall or shall cause the applicable Loan Party to take such actions set forth on Schedule 5.11(h) within the timeframes set forth for the taking of such actions on Schedule 5.11(h) (or within such longer timeframes as either of the First Lien Collateral Agent or the Administrative Agent shall permit in its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the Loan Documents with respect to the taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be completed in accordance with this Section 5.11(h)).
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b1) If any asset a Subsidiary (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (aExcluded Subsidiary) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower Holdings is formed or acquired after the Amendment Effective Date Closing Date, promptly (with and in any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute event, within five (5) days thereafter) notify the acquisition Collateral Agent thereof and, within thirty (30) days after written request of a Subsidiary), the Administrative Agent (i) within 15 Business Days after acting at the date such Subsidiary is formed or acquired (or first becomes subject to such requirementdirection of the Required Lenders) (or such longer period as the Collateral Agent Administrative Agent, acting at the direction of the Required Lenders may agree in its sole discretionagree), notify the Collateral Agent thereof, Holdings will or will cause such Subsidiary to (and (ii) within 20 Business Days (in the case of any Foreign Subsidiary, in a manner consistent with the DIP Financing Orders) use commercially reasonably efforts to:
(i) subject to any relevant guarantee limitation, deliver a joinder to the Guaranty substantially in the form specified therein, duly executed on behalf of such Subsidiary;
(ii) with respect a Domestic Subsidiary) or 60 days (, deliver a joinder to the US Collateral Agreement substantially in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionform specified therein, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest Foreign Subsidiary, appropriate Security Documents (or amendments, supplements or joinders to appropriate Security Documents) substantially similar to other Loan Parties organized in or Indebtedness of such Subsidiary owned by or the same jurisdiction, in each case, duly executed on behalf of such Subsidiary;
(2) Use commercially reasonable efforts (in a manner consistent with the DIP Financings Orders) to (i) cause Subsidiaries that are not Loan Parties to pledge all or substantially all of their assets to secure the Obligations of the Loan Parties, (ii) obtain the consent of third parties with respect to the pledge of Equity Interests of Joint Ventures, including, without limitation, the Lake C▇▇▇▇▇▇ ▇▇ and (iii) cause Loan Parties to pledge any Loan Party, subject in each case assets to paragraph (g) belowsecure the Obligations not previously pledged to secured the Obligations to the extent such pledge is consistent with the DIP Financing Orders.
(e3) [ReservedUse commercially reasonable efforts to deliver the corporate organizational documents, good standing certificates, incumbency and specimen signatures, foreign legal opinions, and such other documents and deliverables as reasonably requested by the Required Lenders in a manner consistent with the DIP Financing Orders (to the extent such items were not otherwise delivered on the Closing Date) to the Administrative Agent prior to the date of entry of the Final DIP Financing Order.]
(f4) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) five Business Days prior written notice of any change (A) in any Loan Party’s corporate ’s:
(a) Corporate, company or organization name;
(b) organizational structure (including jurisdiction of incorporation);
(c) location (determined as provided in UCC Section 9-307) (where applicable), registered office address or location of chief executive office; or
(Bd) in any Loan Party’s identity organizational or organizational structure, (C) in any Loan Party’s organizational company identification number (to the extent relevant or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction of organization)jurisdiction, (D) in Federal Taxpayer Identification Number. Holdings and the Borrowers will not effectuate or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been be made within 30 days following such change (or such longer any statutory period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(5) As reasonably requested by the Required Lenders in writing, use commercially reasonable efforts to execute any and all other documents, financing statements, agreements and instruments and take all such other actions that are required under any applicable law, to document the requirements set forth in the DIP Financing Orders with respect to the creation and perfection of the Liens on the Collateral in which a security interest may be perfected by such filingfavor of the Collateral Agent, for the benefit of the Secured Parties, contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers.
(g6) Notwithstanding anything to the contrary in contrary,
(a) the other provisions of this Agreement, the Security Documents, or Section 5.10 need not be satisfied with respect to any other Loan Document, (i) Excluded Collateral or US Excluded Equity Interests or any exclusions and carve-outs from the Administrative Agent may grant extensions of time for perfection requirements set forth in the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this US Collateral Agreement or the other Loan Documents and (ii) Liens required to be granted any assets or other exclusions and carve-outs from time to time pursuant to, or any other grant of security and perfection requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents., to the extent not conflicting, or otherwise inconsistent, with the DIP Financings Orders;
(hb) [Reserved]no actions will be required with respect to the grant and perfection of security interests that are granted and perfected pursuant to the DIP Financing Orders according to the applicable law and in accordance with the Lien priorities set forth in the DIP Financing Orders;
(c) without limitation of clause (ii) above, no actions will be required outside of the United States or any Specified Foreign Jurisdiction in order to create or perfect any security interest in any assets located outside of the United States or any Specified Foreign Jurisdiction and no security or pledge agreements, mortgages or deeds governed by the laws of any jurisdiction other than the United States or any Specified Foreign Jurisdiction, or any intellectual property filings or searches in any jurisdiction other than the United States or any Specified Foreign Jurisdiction will be required; and
(d) the Administrative Agent shall not enter into any Mortgage in respect of any real property acquired by any Loan Party after the Closing Date until the date that is (a) if such Mortgaged Property relates to a property not located in a Flood Zone, ten (10) Business Days or (b) if such Mortgaged Property relates to a property located in a Flood Zone, thirty (30) days, after the Administrative Agent has delivered to the Lenders the following documents in respect of such real property: (i) a Flood Certificate a third party vendor; (ii) if such real property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Parties of that fact and (if applicable) notification to the applicable Loan Parties that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Parties of such notice; and (iii) if required by Flood Program, evidence of required flood insurance.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset additional Subsidiary of the Borrower (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower ) is formed or acquired after the Amendment Effective Closing Date (with including, without limitation, upon the formation of any such Subsidiary that is a Division Successor) (with
(i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary being deemed to constitute the acquisition of a Subsidiary,
(ii) any Immaterial Subsidiary being designated a Material Subsidiary being deemed to constitute the acquisition of a Subsidiary and
(iii) any transaction or event resulting in a Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of such Subsidiary), (i) within 15 30 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any other Subsidiary Loan Party, subject in each case to paragraph (ge) belowof this Section 5.10.
(ec) [Reserved.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable In each case, furnish to the Administrative Agent) Agent within 30 Business Days thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization (or (E) in the location other “location” for purposes of the chief executive office of UCC) with respect to Holdings, the Borrower and the Subsidiary Loan Parties; provided that the Borrower shall not effect or permit any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the applicable Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].Parties and
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 90 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property as are not covered by any then-existing Mortgages, subject pursuant to any limitations required by documentation substantially in the form of Exhibit K (with such changes to account for local law (other than assets that (imatters) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which or otherwise in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties and (iv) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines, construction and earth moving equipment and other assets subject to certificates of title other than to the contrary extent a Lien on such assets can be perfected by filing a UCC-1, (y) letter of credit rights (in this Agreementeach case, other than to the extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. §1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security DocumentsDocuments or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other Loan Documentasset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), in each case, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition and (xiv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers or collateral access agreements shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, nor shall the Administrative Agent be authorized to take any action outside the United States to create any security interest in assets located or titled outside of the United States or to perfect or make enforceable any security interests in any such assets, (E) share certificates of any person that is not a Subsidiary or of any Foreign Subsidiary shall not be required to be delivered, (F) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (G) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (H) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Property after the Amendment First Restatement Effective Date or (with any fee-owned by an entity at Real Property of (x) any Restricted Subsidiary that is acquired after the time it First Restatement Effective Date and becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (y) any Subsidiary that is designated a Restricted Subsidiary pursuant to a Subsidiary Redesignation and in becomes a Loan Party and (z) any event within 30 daysImmaterial Subsidiary that is designated a Material Subsidiary and becomes a Loan Party being deemed to have been acquired after the First Restatement Effective Date) that has a fair market value of $20.0 million or more on an individual basis (i) notify the Collateral Administrative Agent within 10 Business Days of the acquisition thereof, (ii) cause each such fee-owned Real Property to be subject to a mortgage or deed of trust securing the Obligations, in form and substance reasonably acceptable to the Administrative Agent within 90 days of the date of such acquisition (or ownership such later date as may be agreed to by the Administrative Agent in its reasonable discretion), (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (iiincluding zoning endorsements where available) subject and in amounts reasonably acceptable to the Administrative Agent (where applicablethe “Mortgage Policies”), (iv) to the Agreed Guarantee extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Security Principles Mapping form surveys, dated no more than 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the provisions issuer of the Security DocumentsMortgage Policies in a manner reasonably satisfactory to the Administrative Agent, cause such asset (v) provide evidence of insurance as required by Section 5.02 (including all insurance required to be subjected comply with applicable flood insurance laws) and, to a Lien (subject to any Permitted Liens) securing the Obligations byextent required by Section 5.02, naming the Administrative Agent as loss payee and additional insured, and in such amounts and covering such risks, as are reasonably satisfactory to the Administrative Agent, including the insurance required by the terms of any mortgages or deeds of trust, (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Borrower and the Subsidiary Loan Parties in the states in which such fee-owned Real Properties are located and (vii) take, and cause the applicable Subsidiary Loan Parties Party to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.115.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph (e) of this Section 5.115.10.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case subject to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (including any owned Real Property (other than owned Real Property which is covered by paragraph (c) below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $5.0 million is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary other Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.09(g) or the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, Documents) will promptly as practicable (and in any event within 30 days) (i) promptly notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01B reflecting the addition of such asset, and (where applicableiii) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.11Section, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11(g) below.
(c) Promptly notify the Administrative Agent Grant and cause each of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in and mortgages on in such Owned owned Real Property of the Borrower or any such Subsidiary Loan Parties as are not covered by any then-existing the original Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), the extent acquired after the Closing Date and having a value at the time of acquisition in excess of $10.0 million pursuant to which a Lien on such assets securing documentation substantially in the Obligations is not permitted or (ii) are not required form of the Mortgages delivered to become subject to the Liens of the Collateral Agent pursuant on the Closing Date or in such other form as is reasonably satisfactory to Section 5.11(gthe Collateral Agent (each, an “Additional Mortgage”) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a and constituting valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall; record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith a title insurance policy, and a survey.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch Holdings or the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date and if such Subsidiary is formed a Domestic Subsidiary (other than a Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, an Insurance Subsidiary or acquired (an Immaterial Subsidiary designated by the Borrower as not a Loan Party) or a “first becomes subject to such requirement) tier” Special Purpose Securitization Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent may agree in its sole discretion)shall agree) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired, notify the Collateral Agent thereofand the Lenders thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Domestic Subsidiary (unless such Domestic Subsidiary is not a Wholly Owned Subsidiary) or “first tier” Special Purpose Securitization Subsidiary and with respect to any Equity Interest in or Indebtedness of such Domestic Subsidiary or “first tier” Special Purpose Securitization Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary, within 10 Business Days (or such longer period as the Collateral Agent shall agree) after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary (unless such Foreign Subsidiary is not a Wholly Owned Subsidiary) is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, or (B) in any Loan Party’s identity or organizational structure, structure or (C) in any Loan Party’s organizational identification number and (to the extent relevant in the applicable jurisdiction of organization), (Dii) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as promptly notify the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in if any applicable jurisdiction that are required in order for material portion of the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Partiesis damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the Security Documents other provisions of this Section 5.09 need not be satisfied with respect to (i) any Real Property held by the Borrower or any of its Subsidiaries as a lessee under a lease, (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Insurance Subsidiary except to the extent that a pledge of the Equity Interests thereof is permitted by applicable law, or any Securitization Assets, (v) any Equity Interests acquired after the Closing Date (other than Equity Interests in the Borrower or, in the case of any person which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such Subsidiary, (vi) any assets acquired after the Closing Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) that is secured by a Permitted Lien), (vii) (A) entities that become Subsidiaries (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary being designated as a Subsidiary being deemed to constitute the acquisition or formation of a Subsidiary) after the Closing Date if the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining a guarantee of the applicable Obligations from such entities is excessive in relation to the value to be afforded to the Lenders thereby or (B) those assets as to which the Administrative Agent, after consultation with Holdings, shall reasonably determine that the costs of obtaining or perfecting a security interest in such assets are excessive in relation to the value of the security to be afforded thereby, including (w) the costs and legal and practical difficulties of obtaining such guarantees and security from Foreign Subsidiaries, (x) the costs of obtaining such guarantee or security interest, or perfecting such security interest, in relation to the value of the credit support to be afforded thereby, (y) general statutory limitations, financial assistance, corporate benefit, fraudulent preference, thin capitalization, retention of title claims and similar principles and (z) the fiduciary duties of directors, contravention of legal prohibitions or risk of personal or criminal liability on the part of any officer, (viii) perfection of any security interest in Collateral to the extent such perfection (or the steps required to provide such perfection) would have a material adverse effect on the ability of the relevant Loan Party to conduct its operations and business in the ordinary course as permitted by the Loan Documents, (ix) perfection of any security interest in receivables or other Collateral to the extent such perfection would require notice to customers of Borrower and the Subsidiaries prior to the time that an Event of Default has occurred and is continuing, or (x) any real property acquired by the Borrower or any Subsidiary in the ordinary course of its relocation services business; provided, that, upon the reasonable request of the Administrative Agent, the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (v) and (vi) above. Notwithstanding anything contained in this Agreement to the contrary, no Mortgage shall be subject executed and delivered with respect to exceptions any real property unless and limitations set forth in until each Lender has received, at least twenty Business Days prior to such execution and delivery, a life of loan flood zone determination and such other documents as it may reasonably request to complete its flood insurance due diligence and has confirmed to the Security DocumentsAdministrative Agent that flood insurance due diligence and flood insurance compliance has been completed to its satisfaction.
(h) [Reserved].
Appears in 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages filings and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(c) [Reserved].
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary that is required to become a Subsidiary Loan Party, (i) within 15 30 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 45 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 30 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 45 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure[reserved], (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines, construction and earth moving equipment and other assets subject to certificates of title other than to the contrary extent a Lien on such assets can be perfected by filing a UCC-1, (y) letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) [reserved], (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), in each case, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (xiv) cash to secure letter of credit reimbursement obligations to the extent such letters of credit are permitted under this Agreement and prohibit the granting of a Lien, (xv) any segregated deposits that constitute Permitted Liens and are prohibited from being subject to other Liens, (xvi) assets sold in compliance with this Agreement to a person who is not a Subsidiary Guarantor, (xvii) assets owned by a Subsidiary Guarantor after the release of the guaranty of such Subsidiary Guarantor pursuant to this Agreement, (xviii) any deposit account that is used for the Security Documentspurpose of making payroll and withholding tax payments related thereto and other employee wage and benefits payments and accrued and unpaid employee compensation payments (including salaries, wages, benefits and expense reimbursements, 401(k) and other retirement plans and employee benefits, including rabbi trusts for deferred compensation and health care benefits), (xix) any Foreign Subsidiary to the extent that such grant of a security interest therein would result in any breach of corporate benefit, financial assistance, capital preservation, fraudulent preference, thin capitalization rules, or any other Loan Documentlaw or regulation (or analogous restriction) of the jurisdiction of organization of such person or result in any risk to the officers or directors of such person of a civil or criminal liability, (ixx) property and assets released in accordance with this Agreement and (xxi) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, (B) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers or collateral access agreements shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, nor shall the Administrative Agent be authorized to take any action outside the United States to create any security interest in assets located or titled outside of the United States or to perfect or make enforceable any security interests in any such assets, (E) share certificates of any person that is not a Subsidiary or of any Foreign Subsidiary shall not be required to be delivered, (F) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default and (iiG) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Further Assurances; Additional Security. (1) If (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Restricted Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (aExcluded Subsidiary) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch theany Borrower is formed or acquired or ceases to be an Excluded Subsidiary after the Amendment ClosingAmendment No. 2 Effective Date or, (with any Subsidiary Redesignation resulting in b) an Unrestricted Subsidiary becoming is redesignated as a Subsidiary being deemed to constitute the acquisition of a Restricted Subsidiary), (i) within 15 five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, or (c) an Immaterial Subsidiary existing on the Amendment No. 2 Effective Date is not dissolved, liquidated or first becomes subject merged out of existence within 90 days following such date, then, in each case, the Lead Borrower shall promptly notify the Collateral Agent thereof and, within 2015 Business Days after the date such Restricted Subsidiary is formed or, acquired or redesignated or ceases to such requirement) be an Excluded Subsidiary (or such longer period as the Collateral Agent may agree agrees), the in its sole discretiondiscretion but not to exceed 20 Business Days unless otherwise agreed by the Required Lenders including through electronic means or e-mail) or, for Immaterial Subsidiaries, within 1 Business Day following the post-closing date set forth in clause (c) above, as applicable, the Lead Borrower will or will cause such Restricted Subsidiary or Immaterial Subsidiary, as applicable, to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in the Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent (or a designated bailee thereof);
(iii) to the extent required by and subject to the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with (A) the execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.
(A) If any Loan Party (i)(a) acquires fee simple title in Real Property after the ClosingAmendment No. 2 Effective Date or (b) owns fee simple title in Real Property on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof, that, combined with all other Real Property owned in fee simple by the Loan Partiesin each case of subclauses (a) and (b) of this clause (A)(i), on the date of such acquisition or joinder, as applicable, has an aggregateindividual fair market value (as determined in good faith by a Responsible Officer of the Lead Borrower in consultation with the Collateral Agent) of $50.0 million or more within 20 Business Days 2.5 million or more or (ii)(a) acquires a leasehold interest in Real Property after the Amendment No. 2 Effective Date with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center or (b) owns leasehold title in Real Property with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof or (B) any Non-Mortgageable Lease of a Loan Party with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center ceases to be a Non-Mortgageable Lease hereunder, then in each case of the foregoing clauses (A) and (B) above, within 20 Business Days (unless otherwise agreed by the Required Lenders including through electronic means or e-mail)after such acquisition or entry of a joinder or such Non-Mortgageable Lease ceases to be a Non-Mortgageable Lease hereunder (as applicable):
(a) notify the Collateral Agent thereof, and ;
(iib) within 20 Business Days cause any such acquired Real Property owned in fee simple that has a fair market value (as determined in good faith by a Responsible Officer of the case Lead Borrower in consultation with the Collateral Agent) of a Domestic Subsidiary) $7.52.5 million or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required more to be subjected to a Subsidiary customary mortgage or deed of trust securing the Obligations (other than the 2013 Term Loan PartyObligations);
(c) cause any such acquired or owned leasehold Real Property to be subjected to a customary mortgage or deed of trust securing the Obligations (other than the 2013 Term Loan Obligations);
(d) (c) with respect to any such longer period as Real Property, to the extent requested by the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies, with respect to such Subsidiary and endorsements (including a standard survey endorsement or equivalent (only with respect to any Equity Interest such Real Property acquired or owned in or Indebtedness fee simple) and zoning endorsements where available) and in customary amounts that in no event shall be less than fair market value of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph Real Property (g) below.the “Mortgage Policies”);
(e) [Reserved.](d) with respect to any such Real Property acquired or owned in fee simple pursuant to Section 5.10(2)(A), to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, certified to the Collateral Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent and sufficient for the issuer of the Mortgage Policies to omit as an exception to each title policy the standard printed survey exception relating to such Real Property;
(f) Furnish (e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance laws) naming the Collateral Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably available for similar properties in the same geographical area and as are reasonably satisfactory to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to Agent, including the Administrative Agent) written notice insurance required by the terms of any change (A) in any Loan Party’s corporate mortgage or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction deed of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.trust;
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, (f) obtain customary mortgage or any other Loan Document, (i) the Administrative Agent may grant extensions deed of time trust enforceability opinions of local counsel for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth Parties in the Security Documents.
(h) [Reserved].states in which such acquired Real Properties owned in fee simple are located; and
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Property after the Amendment First Restatement Effective Date or (with any fee-owned by an entity at Real Property of (x) any Restricted Subsidiary that is acquired after the time it First Restatement Effective Date and becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (y) any Subsidiary that is designated a Restricted Subsidiary pursuant to a Subsidiary Redesignation and in becomes a Loan Party and (z) any event within 30 daysImmaterial Subsidiary that is designated a Material Subsidiary and becomes a Loan Party being deemed to have been acquired after the First Restatement Effective Date) that has a fair market value of $20.0 million or more on an individual basis (i) notify the Collateral Administrative Agent within 10 Business Days of the acquisition thereof, (ii) cause each such fee-owned Real Property to be subject to a mortgage or deed of trust securing the Obligations, in form and substance reasonably acceptable to the Administrative Agent within 90 days of the date of such acquisition (or ownership such later date as may be agreed to by the Administrative Agent in its reasonable discretion), (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (iiincluding zoning endorsements where available) subject and in amounts reasonably acceptable to the Administrative Agent (where applicablethe “Mortgage Policies”), (iv) to the Agreed Guarantee extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Security Principles Mapping form surveys, dated no more than 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the provisions issuer of the Security DocumentsMortgage Policies in a manner reasonably satisfactory to the Administrative Agent, cause such asset (v) provide evidence of insurance as required by Section 5.02 (including all insurance required to be subjected comply with applicable flood insurance laws) and, to a Lien (subject to any Permitted Liens) securing the Obligations byextent required by Section 5.02, naming the Administrative Agent as loss payee and additional insured, and in such amounts and covering such risks, as are reasonably satisfactory to the Administrative Agent, including the insurance required by the terms of any mortgages or deeds of trust, (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Borrower and the Subsidiary Loan Parties in the states in which such fee-owned Real Properties are located and (vii) take, and cause the applicable Subsidiary Loan Parties Party to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.115.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph (e) of this Section 5.115.10.
(c) Promptly notify the Administrative Agent If any additional Subsidiary of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law Borrower (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded an Immaterial Subsidiary, if any additional direct an Unrestricted Subsidiary, a Qualified CFC Holding Company, a CFC or indirect a Domestic Subsidiary of Dutch Borrower a CFC) is formed or acquired after the Amendment First Restatement Effective Date (with (i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary being deemed to constitute the acquisition of a Subsidiary, (ii) any Immaterial Subsidiary being designated a Material Subsidiary being deemed to constitute the acquisition of a Subsidiary and (iii) any transaction or event resulting in a Subsidiary ceasing to be a Qualified CFC Holding Company, a CFC or a Domestic Subsidiary of a CFC being deemed to constitute the acquisition of a Subsidiary), (i) within 15 10 Business Days after the date such Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 30 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any other Subsidiary Loan Party, subject in each case to paragraph (ge) belowof this Section 5.10.
(ed) [Reserved.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable In each case, furnish to the Administrative Agent) Agent within 30 Business Days thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (or equivalent) with respect to Holdings, the extent relevant in Borrower and the applicable jurisdiction of organization), (D) in other Subsidiary Loan Parties; provided that the Borrower shall not effect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the applicable Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Parties and (ii) Liens required to be granted from time to time pursuant to, promptly notify the Administrative Agent if any material portion of the Collateral is damaged or any other requirements of, the destroyed.
(e) The Collateral and Guarantee Requirement and the Security Documents shall other provisions of this Section 5.10 need not be subject satisfied with respect to exceptions any Excluded Assets or Excluded Equity Interests (each as defined in the Collateral Agreement) or any exclusions and limitations carve-outs from the perfection requirements set forth in the Security DocumentsCollateral Agreement.
(hf) [Reserved]Nothing in this Section 5.10 shall require Holdings, the Borrower or any other Loan Party to take any action outside the United States to create or perfect any security interests in any Collateral located outside of the United States or of a Foreign Subsidiary (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any foreign jurisdiction). Furthermore, with respect to real property, no perfection steps shall be required by any means other than (1) solely with respect to any properties subject to any mortgages on fee-owned Real Property not excluded from the Collateral pursuant to this Agreement (“Required Mortgages”), fixture filings pursuant to the UCC in the applicable UCC filing office of the relevant jurisdiction in which such fee-owned Real Property is located and (2) the recording of Required Mortgages in the applicable county offices referred to in the foregoing clause (1).
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $10,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations byObligations, and take, and cause the such Subsidiary Loan Parties Party, as applicable, to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 120 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which documentation substantially in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) deliver, and shall cause each such applicable Subsidiary Loan Party to record deliver for recording or file filing, with all required documentation, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) belowbelow and (iii) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (including, without limitation, pursuant to a Delaware LLC Division) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or such longer period as set forth in the definition of “Collateral and Guarantee Requirement” or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of the Borrower or any Subsidiary Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) motor vehicles and other assets subject to certificates of title, letter of credit rights (in each case, other than to the contrary extent a Lien on such assets or such rights can be perfected by filing a Uniform Commercial Code financing statement) and commercial tort claims with a value of less than $3,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is (1) binding on such assets (x) on the Closing Date or (y) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i)) or (2) entered into in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i)) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental or regulatory licenses (including gaming licenses) or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold, including in connection with any Permitted Securitization Financing or other receivables sale or financing not prohibited under this Agreement, the Security Documents, or and any other Loan Documentassets subject to Liens securing Permitted Securitization Financings or other receivables sales or financings not prohibited under this Agreement, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (p), (u), (aa), (ee), (ff) or (mm) of Section 6.02 or is otherwise subject to acquired debt, purchase money debt, a Sale and Lease-Back Transaction or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt, Sale and Lease-Back Transaction or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), (xiv) all assets of Holdings other than, prior to a Qualified IPO, Equity Interests of the Borrower directly held by Holdings and pledged pursuant to the Holdings Guarantee and Pledge Agreement and (xv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, (B) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, (E) no notice shall be required to be sent to insurers, account debtors or other contractual third parties when no Event of Default has occurred and is continuing, (iiF) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (G) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document and any applicable Intercreditor Agreement with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (1) If (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Restricted Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (aExcluded Subsidiary) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date or (with any Subsidiary Redesignation resulting in b) an Unrestricted Subsidiary becoming is redesignated as a Restricted Subsidiary being deemed to constitute the acquisition of a that is not an Excluded Subsidiary), (i) within 15 five Business Days after the date such Restricted Subsidiary is formed or acquired or such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, as applicable, notify the Administrative Agent thereof and, within 20 Business Days after the date such Restricted Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretion), notify the Borrowers will or will cause such Restricted Subsidiary to:
(i) deliver a joinder to the applicable Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in the applicable Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes a designated bailee thereof);
(iii) to the extent required by and subject to be a Subsidiary Loan Party) the exceptions set forth in this Section 5.10 or such longer period as the Security Documents, deliver to the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied (or a designated bailee or agent thereof) UCC financing statements with respect to such Restricted Subsidiary and such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and perfect such Liens to the extent required by the Security Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all consents and approvals required to be obtained by it in connection with respect (A) the execution and delivery of all Security Documents (or supplements thereto) to any Equity Interest in or Indebtedness which it is a party and the granting by it of such Subsidiary owned by or on behalf the Liens thereunder and (B) the performance of any Loan Party, subject in each case to paragraph (g) belowits obligations thereunder.
(e2) [Reserved].]
(f3) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) five Business Days prior written notice of any change (A) in any Loan Party’s ’s:
(a) corporate or organization name, ;
(Bb) in any Loan Party’s identity or organizational structure, ;
(Cc) location (determined as provided in any Loan Party’s UCC Section 9-307); or
(d) organizational identification number (to the extent relevant or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction of organization)jurisdiction, (D) in Federal Taxpayer Identification Number. The Borrowers will not affect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been be made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest interest, for the benefit of the applicable Secured Parties, in all Collateral held by such Loan Party.
(4) Execute any and all other documents, financing statements, agreements and instruments, and take all such other actions (including the filing and recording of financing statements and other documents), not described in the preceding clauses (1) through (3) and that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the requirements set forth in this Section 5.10 and in the Security Documents with respect to the creation and perfection of the Liens on the Collateral in which a security interest may be perfected by such filingfavor of the Collateral Agent, for the benefit of the Secured Parties.
(g) Notwithstanding anything , contemplated herein and in the Security Documents and to cause such requirement to be and remain satisfied, all at the expense of the Borrowers, and provide to the contrary in this AgreementCollateral Agent, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant toupon reasonable request, or any other requirements of, evidence as to the Collateral perfection and Guarantee Requirement and priority of the Security Documents shall be subject to exceptions and limitations set forth in Liens created by the Security Documents.
(h5) [Reserved]Notwithstanding anything to the contrary,
(a) the other provisions of this Section 5.10 need not be satisfied with respect to any Excluded Assets or Excluded Equity Interests or any exclusions and carve-outs from the perfection requirements set forth in the Collateral Agreement;
(b) no Borrower nor the other Loan Parties will be required to grant a security interest in any asset or perfect a security interest in any Collateral to the extent the cost, burden, difficulty or consequence of obtaining or perfecting a security interest therein outweighs the benefit of the security afforded thereby as reasonably determined by the Borrower Representative and the Administrative Agent; and
(c) no actions will be required outside of the United States in order to create or perfect any security interest in any assets located outside of the United States and no non-U.S. law security or pledge agreements, non-U.S. law mortgages or deeds or non-U.S. intellectual property filings or searches will be required.
Appears in 1 contract
Sources: Loan Agreement (Ulta Beauty, Inc.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Parties, and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Estate in the United States after the Amendment Effective Closing Date that has an aggregate fair market value of $7,500,000 or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements)more, Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause each such asset fee-owned Real Estate to be subjected to a Lien (subject to any Permitted Liens) mortgage or deed of trust securing the Obligations byObligations, in form and substance reasonably acceptable to the Agent, (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements where available) and in amounts reasonably acceptable to the Agent (the “Mortgage Policies”), (iv) to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than thirty (30) days before the date of their delivery to the Agent, certified to the Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Agent, (v) provide (1) “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations, (2) notices, in the form required under the flood insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each Loan Party, and, (3) if any improved real property encumbered by any mortgage is located in a special flood hazard area, a policy of flood insurance that (A) covers such improved real property, (B) is written in an amount not less than the outstanding principal amount of the Indebtedness secured by such mortgage reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the flood insurance Laws, whichever is less, (C) naming the Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Agent, and (D) is otherwise on terms satisfactory to the Agent; and (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such fee-owned Real Estate are located and (vii) take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.116.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent If any additional Subsidiary of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (with any or if an Excluded Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed ceases to constitute the acquisition of a Subsidiaryqualify as such), promptly after the date such Subsidiary is formed or acquired (ior after such entity ceases to qualify as an Excluded Subsidiary, as applicable), notify the Agent thereof and, within thirty (30) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretionshall agree), notify to the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic extent such Person does not constitute an Excluded Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement Guaranty Requirements to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any a Loan Party, subject in each case Party as and to paragraph (g) belowthe extent required under the Security Documents.
(ei) [Reserved.]
(f) Furnish to In each case furnish the Collateral Agent prompt written notice of any change (and in any event within 20 30 days after of such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (Achange) in any Loan Party’s (A) corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organizationequivalent); provided, provided that the Borrowers shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured applicable Credit Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. Subject to any Intercreditor Agreement:
(a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages filings and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset that has an individual fair market value (other as determined in good faith by the Borrower) in an amount greater than Real Property which is covered by paragraph (c) below) $10,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent and the Administrative Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the such Subsidiary Loan Parties Party, as applicable, to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(c) [Reserved].
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (including, without limitation, pursuant to a Delaware LLC Division) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofand the Administrative Agent thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or such longer period as set forth in the definition of “Collateral and Guarantee Requirement” or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of the Borrower or any Subsidiary Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent and the Administrative Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of the Borrower or any Subsidiary Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) Agent prompt written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property, (ii) (1) motor vehicles and other assets subject to certificates of title (other than to the contrary extent a Lien on such assets or such rights can be perfected by filing a Uniform Commercial Code financing statement), (2) letter of credit rights (other than to the extent a Lien on such assets or such rights can be perfected by filing a Uniform Commercial Code financing statement) and (3) commercial tort claims with a value of less than $10,000,000, (iii) pledges and security interests prohibited by applicable law, rule or regulation (including with respect to any funds, assets, liabilities or other amounts received or incurred that, pursuant to requirements of any Governmental Authority, may not be used as collateral or otherwise hypothecated, including, but not limited to, funds received under Title IV of the Higher Education Act or any other governmental financial support program for students that are held in trust for the intended student beneficiaries, funds held as credit balances for students, and funds that are subject to return to the U.S. Department of Education or to students, in each case, to the extent the pledge thereof is prohibited by applicable law, rule or regulation) or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is (1) binding on such assets (x) on the Closing Date or (y) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i)) or (2) entered into in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code)) or which could require consent, approval, license or authorization of a Governmental Authority to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate applicable law or violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor), in each case, after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest in favor of the Secured Parties or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental or regulatory licenses or state, provincial, territorial, municipal or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. §1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed with and accepted by the United States Patent and Trademark Office, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold, including in connection with any Permitted Securitization Financing or other receivables sale or financing not prohibited under this Agreement, the Security Documents, or and any other Loan Documentassets subject to Liens securing Permitted Securitization Financings or other receivables sales or financings not prohibited under this Agreement, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (p), (u), (aa), (ee), (ff), (mm) or (oo) of Section 6.02 or is otherwise subject to acquired debt (limited to the acquired assets), purchase money debt, a Sale and Lease-Back Transaction or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt, Sale and Lease-Back Transaction or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions under Article 9 of the Uniform Commercial Code or other applicable law), (xiv) [reserved] and (xv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent, including those listed in Schedule 1.01(D); provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property”. Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, (B) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required, (D) no security documents governed by a law other than the laws of the United States or perfection under a law other than the laws of the United States shall be required, (E) no notice shall be required to be sent to insurers, account debtors or other contractual third parties when no Event of Default has occurred and is continuing and (iiF) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and any applicable Intercreditor Agreement.
(h) [Reserved].
Appears in 1 contract
Sources: Revolving Credit Agreement (Phoenix Education Partners, Inc.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Parties, and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Estate in the United States after the Amendment Effective Closing Date that has an aggregate fair market value of $7,500,000 or owned by an entity at the time it becomes a Subsidiary Loan Party more,20,250,000 or more (in each case other than assets constituting Collateral under a Security Document that become excluding any real property subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent Indebtedness pursuant to the Security Documents or the Collateral and Guarantee RequirementsSection 7.01(z)), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and thereof, (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause each such asset fee-owned Real Estate to be subjected to a Lien (subject to any Permitted Liens) mortgage or deed of trust securing the Obligations byObligations, in form and substance reasonably acceptable to the Agent, (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (including zoning endorsements where available) and in amounts reasonably acceptable to the Agent (the “Mortgage Policies”), (iv) to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than thirty (30) days before the date of their delivery to the Agent, certified to the Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Agent, (v) provide (1) “Life of Loan” Federal Emergency Management Agency Standard Flood Hazard determinations, (2) notices, in the form required under the Flood Insurance Laws, about special flood hazard area status and flood disaster assistance duly executed by each Loan Party, and, (3) if any improved real property encumbered by any mortgage is located in a special flood hazard area, a policy of flood insurance that (A) covers such improved real property, (B) is written in an amount not less than the outstanding principal amount of the Indebtedness secured by such mortgage reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the Flood Insurance Laws, whichever is less, (C) naming the Agent as loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably satisfactory to the Agent, and (D) is otherwise on terms satisfactory to the Agent; and (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Loan Parties in the states in which such fee-owned Real Estate are located and (vii) take, and cause the applicable Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.116.10, all in each case, at the expense of the Loan Parties.6.10, in each case, at the expense of the Loan Parties. Notwithstanding the foregoing, subject to the final paragraph Agent shall not enter into any mortgage or deed of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement trust in respect of any Real Property that was not Owned Estate acquired by any Loan Party after the Closing Date until (1) the Agent has delivered to the Lenders (which may be delivered electronically) the following documents in respect of such Real Property that results Estate: (i) a completed flood hazard determination from a third party vendor, (ii) if such Real Estate is located in it qualifying as Owned Real Propertya “special flood hazard area,” (A) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause a notification to the applicable Loan Parties to grant Party of that fact and (if applicable) notification to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets applicable Loan Party that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations flood insurance is not permitted or available and (iiB) are not required to become subject to evidence of receipt by the Liens applicable Loan Party of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallsuch notice, and shall cause each (iii) if such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as notice is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant provided to the Mortgages and pay, and cause each such Subsidiary applicable Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than flood insurance is available in the case community in which such Real Estate is located, evidence of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereofflood insurance, and (ii2) within 20 Business Days the Agent shall have received written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required written confirmation not to be a Subsidiary Loan Party) unreasonably conditioned, withheld or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) belowdelayed).
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute (i) As promptly as practicable, and in any event within the time periods after the Closing Date specified in Schedule 5.11 (or such later date as the Administrative Agent reasonably agrees to in writing), the Borrower shall deliver, or cause to be delivered, the documents or take the actions specified on Schedule 5.11 and (ii) after the Closing Date, the Borrower or any other Credit Party shall execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages Control Agreements and other documents and recordings of Liens in stock registries), that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Collateral Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Credit Party directly or indirectly acquires fee-owned real property after the Amendment Effective Closing Date (with any fee-owned real property of (x) any Restricted Subsidiary that is acquired after the Closing Date and becomes a Credit Party, (y) any subsidiary that is designated a Restricted Subsidiary pursuant to a Subsidiary Redesignation and becomes a Credit Party and (z) any Immaterial Subsidiary that is designated a Material Subsidiary and becomes a Credit Party being deemed to have been acquired after the Closing Date) that has a fair market value of $7.5 million or owned by more on an entity individual basis at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of acquisition of fee ownership of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of real property, the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) other Credit Party shall (i) notify the Collateral Administrative Agent and provide the Administrative Agent with a complete description of such property (including its legal description) reasonably promptly following the acquisition or ownership and thereof; (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause each such asset fee-owned real property to be subjected subject to a Lien (subject to any Permitted Liens) Mortgage securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense within one-hundred twenty days of the Loan Parties, subject to the final paragraph date of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time period as may be agreed by the Administrative Agent), provided that the maximum amount of the Obligations secured thereby shall not exceed 115% of the fair market value of such fee-owned real property, plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered thereby or the lien thereof, expenses incurred by the Administrativeany Agent by reason of any default by the Borrower or such Credit Party under the terms thereof, together with interest thereon, all of which amounts shall be secured thereby; (iii) obtain an irrevocable written commitment to issue a mortgagee’s title policy or marked up unconditional binder for such insurance dated as of the date the applicable Mortgage is recorded (or local equivalent lender’s title insurance policies for real property outside of the United States), with endorsements (including zoning endorsements where available) as reasonably requested by the Administrative Agent shall agree to the extent available at commercially reasonable rates (the “Mortgage Policies”); (iv) to the extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys (or local equivalent) or deliver existing surveys together with affidavits of no-change to the title insurance company in its sole discretionlieu thereof, dated no more than thirty days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Administrative Agent; (v) will grant and cause obtain customary opinions of local counsel to the applicable Loan Credit Parties to grant with respect to the Collateral enforceability and perfection of any such Mortgage in the states or provinces in which such fee-owned real properties are located; and (vi) if any such fee-owned real property is a Flood Hazard Property, provide to the Administrative Agent security interests in (A) the standard flood hazard determination form and mortgages (B) evidence of such flood insurance as may be required under applicable law and otherwise consistent with the requirements of Section 5.2 and naming the Administrative Agent as loss payee on behalf of the Secured Parties or evidence of such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations other insurance required by local law the Administrative Agent, acting reasonably.
(c) If any additional subsidiary of the Borrower (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any an Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower ) is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)Closing Date, (i) within 15 Business Days thirty days after the date such Subsidiary subsidiary is formed or acquired (or first becomes subject to such requirement) longer period as may be agreed by the Administrative Agent), notify the Administrative Agent and the Lenders thereof and, within sixty days after the date such subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary subsidiary owned by or on behalf of the Borrower or any Loan other Credit Party, subject in each case to paragraph (ge) belowof this Section 5.11.
(ed) [Reserved.]
(fi) Furnish to In each case other than in connection with the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable Acquisition, furnish to the Administrative Agent) Agent within thirty days thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, or (C) in any Loan Party’s organizational identification number (or equivalent) with respect to the extent relevant in Borrower and the applicable jurisdiction of organization), (D) in other Credit Parties; provided that the Borrower shall not effect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, UCC or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral AdministrativeCollateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral (to the Collateral in which a security interest may be perfected by such filing, extent otherwise required hereunder) for the benefit of the applicable Secured PartiesParties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(e) The Collateral and Guarantee Requirement and the other provisions of this Section 5.11 need not be satisfied with respect to any Excluded Property or any exclusions and carve-outs from the perfection requirements set forth in the Pledge and Security Agreement.
(f) With respect to real property, no perfection steps shall be required by any means other than (1) solely with respect to any properties subject to any mortgages on fee-owned real property not excluded from the Collateral pursuant to this Agreement (“Required Mortgages”), fixture filings pursuant to the UCC in the applicable UCC filing office of the relevant jurisdiction in which such fee-owned real property is located and (2) the recording of Required Mortgages in the applicable county offices referred to in the foregoing clause (1); provided that the maximum amount of the Obligations secured by the Required Mortgages shall not exceed 115% of the fair market value of such fee-owned real property, plus, to the extent permitted by applicable law, collection costs, sums advanced for the payment of taxes, assessments, maintenance and repair charges, insurance premiums and any other costs incurred to protect the security encumbered thereby or the lien thereof, expenses incurred by the Administrativeany Agent by reason of any default by the Borrower or any Credit Party under the terms thereof, together with interest thereon, all of which amounts shall be secured thereby.
(g) If at any time the Borrower becomes and remains a Subsidiary of any Parent Holding Company, cause each Parent Holding Company that directly holds Equity Interests of the Borrower to enter into a pledge agreement, in form and substance substantially similar to the Pledge and Security Agreement (which pledge agreement shall include, (x) a guarantee by such Parent Holding Company of the Obligations of each Person other than such Parent Holding Company pursuant to guarantee terms substantially similar to the guarantee terms in Section 7 of this Agreement and (y) a covenant restricting such Parent Holding Company from creating, incurring or permitting to exist any Lien on its Equity Interests of the Borrower other than Liens to secure any Indebtedness of the Borrower and/or any Guarantor permitted to be secured by the Collateral pursuant to Section 6.2 of this Agreement), and deliver to the AdministrativeCollateral Agent (or a designated bailee thereof) all certificates or other instruments (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, in each case within 30 days of each such Parent Holding Company acquiring such direct Equity Interests in the Borrower. Notwithstanding anything to the contrary in this Agreement, the Pledge and Security Documents, Agreement or any other Loan Credit Document, (ix) the Administrative Agent AgentRequisite Lenders may grant extensions of time for for, or waive the requirements to obtain, the creation or perfection of security interests in in, or the obtaining of title insurance (including title insurance) or and surveys with respect to to, particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Credit Parties on such date) where it reasonably determinesdeterminesthey determine, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection the cost, burden or consequences (including adverse Tax consequences) of obtaining of or perfecting a security interest in such items cannot be accomplished without undue effort or expense on assets is excessive in relation to the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents practical benefit afforded thereby; and (iiy) Liens required to be granted from time to time pursuant to, or any other requirements of, to the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsCollateral Documents and, to the extent appropriate in the applicable jurisdictions, as otherwise agreed between the Administrative AgentRequisite Lenders and the Borrower.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, intellectual property security agreements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (gh) below. If With respect to any Collateral pledged under an Israeli Collateral Agreement, the Administrative Agent or Borrower shall deliver to the Collateral Agent reasonably determines (in consultation an original certificate of registration, promptly upon receipt thereof, together with an extract from the Dutch Borrower) that it is a requirement Israeli Registrar of applicable law to have appraisals prepared in respect Pledges or the Israeli Registrar of Companies, as applicable, evidencing the registration of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREArelevant Lien.
(b) If any asset (other than Real Property Property, which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the Borrower) in an amount greater than $20.0 million that is required to become Collateral is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, Party will (i) promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership thereof and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and take or cause the Subsidiary Loan Parties to take, take such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to grant and perfect such Lien and Liens (subject to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetany Permitted Liens), including actions described in clause paragraph (a) of this Section 5.11Section, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11(h) below.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as of and, unless waived by the Administrative Agent shall agree in its sole discretion) Collateral Agent, will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on on, such Owned Real Property as of any Loan Parties that are not covered by any then-existing MortgagesMortgaged Property as of the Closing Date, subject to any limitations required by local law the extent acquired after the Closing Date, within 90 days after such acquisition (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(cor such later date as the Collateral Agent may agree in its reasonable discretion), pursuant to which a Lien on documentation in such assets securing the Obligations form as is not permitted or (ii) are not required reasonably satisfactory to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g(each, an “Additional Mortgage”) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a and constituting valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection recordation thereof. Parent shall, record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewith, in each case subject to paragraph (gh) below. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrower shall deliver to the Collateral Agent contemporaneously therewith opinions of local counsel, a title insurance policy and a survey and otherwise comply with the Collateral and Guarantee Requirements applicable to Mortgages and Mortgaged Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Wholly-Owned Domestic Subsidiary or a Wholly-Owned Subsidiary organized or incorporated under the laws of England and Wales or Israel (in each case, other than an Excluded Subsidiary), within fifteen (i15) within 15 Business Days after the date such Wholly-Owned Domestic Subsidiary or such Wholly-Owned Subsidiary organized or incorporated under the laws of England and Wales or Israel is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretionreasonably agree), notify the Collateral Agent thereofthereof and, and within twenty (ii20) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Wholly-Owned Domestic Subsidiary or such Wholly-Owned Subsidiary organized or incorporated under the laws of England and Wales or Israel is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent shall agree (or, with respect to clauses (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 90 days after such formation or acquisition or such longer period as set forth therein or as the Collateral Agent may agree in its sole reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Wholly-Owned Domestic Subsidiary or such Wholly-Owned Subsidiary organized or incorporated under the laws of England and Wales or Israel and with respect to any Equity Interest in or Indebtedness of such Wholly-Owned Domestic Subsidiary or such Wholly-Owned Subsidiary organized or incorporated under the laws of England and Wales or Israel owned by or on behalf of the Borrower or any Domestic Subsidiary Loan Party, subject in each case to paragraph (h) below. If a Foreign Subsidiary Loan Party transfers all or substantially all of its assets to another Wholly-Owned Subsidiary that is a Foreign Subsidiary of the Borrower that is not a Foreign Subsidiary Loan Party, then within ten (10) Business Days after the date of such transfer or such longer period as the Collateral Agent shall agree, the Borrower shall cause such Foreign Subsidiary to become a Foreign Subsidiary Loan Party, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Foreign Subsidiary Loan Party and, if 100% of the Equity Interests in such Foreign Subsidiary Loan Party that transferred such assets were previously pledged prior to such transfer, cause 100% of the issued and outstanding Equity Interests in such Foreign Subsidiary to be pledged to the Collateral Agent.
(e) If any additional Subsidiary of the Borrower (other than a Subsidiary contemplated by paragraph (d) above) is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary constitutes a “first tier” Subsidiary of the Borrower or a Domestic Subsidiary Loan Party, within fifteen (15) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent may agree), notify the Collateral Agent thereof and, within twenty (20) Business Days after the date such Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Subsidiary owned by or on behalf of the Borrower or any Domestic Subsidiary Loan Party, subject in each case to paragraph (h) below.
(f) If the certificate of a Financial Officer of the Borrower delivered pursuant to Section 5.04(c) for any fiscal period (commencing with the first full fiscal quarter ending after the Closing Date) demonstrates that the Guarantor Coverage Test was not satisfied as of the last day of the fiscal period for which such certificate was delivered, then within thirty (30) Business Days after the date such certificate was required to be delivered pursuant to Section 5.04(c) (or such longer period as the Administrative Agent may agree), cause the Collateral and Guarantee Requirement to be satisfied with respect to sufficient additional Subsidiaries (which shall be selected by the Borrower in its sole discretion) and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any Domestic Subsidiary Loan Party, subject in each case to paragraph (gh) below, such that, with the addition of such Subsidiaries as Subsidiary Loan Parties, the Guarantor Coverage Test would have been satisfied as of the last day of such fiscal period; provided, that for the avoidance of doubt, any failure to satisfy the Guarantor Coverage Test as of the last day of the fiscal period for which such certificate was delivered shall not, by itself, constitute a Default or an Event of Default under this Agreement.
(e) [Reserved.]
(fg) Furnish to the Collateral Agent prompt promptly (and in any event within 20 30 days after such change or such longer period as may be acceptable to the Administrative Agentchange) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), or (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that no Loan Party shall effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue (to the extent required hereunder) at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesParties with the same priority as prior to such change.
(gh) The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other provisions of the Loan Documents with respect to Collateral need not be satisfied with respect to any Excluded Property. Notwithstanding anything to the contrary in this Agreement, the any Security DocumentsDocument, or any other Loan Document, (iA) the Administrative Agent may grant extensions of time or waiver of requirement for the creation grant or perfection of security interests in or the obtaining of insurance (including title insurance) or and surveys with respect to particular assets (including extensions beyond the Closing Date for the grant or perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, (B) no foreign law governed security documents or grant or perfection actions under foreign law shall be required except with respect to pledges of the Equity Interests in, and assets of, Foreign Subsidiary Loan Parties (in which case such documents (including any intellectual property security agreements or filings) and grant or perfection actions (i) shall be limited to the jurisdictions of formation or incorporation of the Loan Parties (provided that, for the avoidance of doubt, perfection actions (including any intellectual property filings) with respect to the intellectual property of any Loan Party at any national registry in the jurisdiction of formation or incorporation of such Loan Party or any other Loan Party or at any European supra-national intellectual property registry, in each case, shall not be prohibited by this subclause (B)(i)) and (ii) shall be permitted to be delivered on or prior to the date that is 10 Business Days after the Closing Date (or such longer period as the Administrative Agent may determine in its reasonable discretion)), (C) no landlord, mortgagee or bailee waivers shall be required, (D) no notice shall be required to be sent to account debtors or other contractual third parties prior to an acceleration of the Obligations under this Agreement pursuant to Section 7.01, (E) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents and, to the extent appropriate in the applicable jurisdiction, as otherwise agreed between the Administrative Agent and the Borrower, (F) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent), (G) there shall be no control, lockbox or similar arrangements nor any control agreements relating to the Borrower’s and its subsidiaries’ bank accounts (including deposit, securities or commodities accounts), (H) the Administrative Agent and the Borrower may make such modifications to the Security Documents, and execute and/or consent to such easements, covenants, rights of way or similar instruments (and Administrative Agent may agree to subordinate the lien of any mortgage to any such easement, covenant, right of way or similar instrument or record or may agree to recognize any tenant pursuant to an agreement in a form and substance reasonably acceptable to the Administrative Agent), as are reasonable or necessary in connection with any project or transactions otherwise permitted hereunder, (I) other than with respect to clauses (h)(i) and (h)(ii) of the definition of “Collateral and Guarantee Requirement”, clause (h) of the definition of “Collateral and Guarantee Requirement” shall not be required to be satisfied with respect to any Mortgaged Property that has a fair market value of less than $20.0 million (as determined by the Borrower in good faith) and (J) any Lien or security interest granted by a Foreign Subsidiary Loan Party pursuant to any Loan Document on any assets or property of any Foreign Subsidiary Loan Party shall secure only such Foreign Subsidiary Loan Party’s obligations under the Guarantee Agreement, and no Agent or Lender may exercise any remedies against such Foreign Subsidiary Loan Party under any Loan Document except after the occurrence and during the continuance of a default in such Foreign Subsidiary Loan Party’s obligations under the Guarantee Agreement.
(hi) [Reserved]The Borrower shall, or shall cause the applicable Loan Parties to, satisfy the requirements listed on Schedule 5.10 within the timeframes indicated thereon.
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party directly or indirectly acquires fee-owned Real Property after the Second Amendment Effective Date or (with any fee-owned by an entity at Real Property of (x) any Restricted Subsidiary that is acquired after the time it Second Amendment Effective Date and becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (y) any Subsidiary that is designated a Restricted Subsidiary pursuant to a Subsidiary Redesignation and in becomes a Loan Party and (z) any event within 30 daysImmaterial Subsidiary that is designated a Material Subsidiary and becomes a Loan Party being deemed to have been acquired after the Second Amendment Effective Date) that has a fair market value of $5.0 million or more on an individual basis (i) notify the Collateral Administrative Agent within 10 Business Days of the acquisition thereof, (ii) cause each such fee-owned Real Property to be subject to a mortgage or deed of trust securing the Obligations, in form and substance reasonably acceptable to the Administrative Agent within 90 days of the date of such acquisition (or ownership such later date as may be agreed to by the Administrative Agent in its reasonable discretion, (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies in form and substance, with endorsements (iiincluding zoning endorsements where available) subject and in amounts reasonably acceptable to the Administrative Agent (where applicablethe “Mortgage Policies”), (iv) to the Agreed Guarantee extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Security Principles Mapping form surveys, dated no more than 30 days before the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the provisions issuer of the Security DocumentsMortgage Policies in a manner reasonably satisfactory to the Administrative Agent, cause such asset (v) provide evidence of insurance as required by Section 5.02 (including all insurance required to be subjected comply with applicable flood insurance laws) and, to a Lien (subject to any Permitted Liens) securing the Obligations byextent required by Section 5.02, naming the Administrative Agent as loss payee and additional insured, and in such amounts and covering such risks, as are reasonably satisfactory to the Administrative Agent, including the insurance required by the terms of any mortgages or deeds of trust (vi) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Borrower and the Subsidiary Loan Parties in the states in which such fee-owned Real Properties are located and (vii) take, and cause the applicable Subsidiary Loan Parties Party to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.115.10, all in each case, at the expense of the Loan Parties, subject to the final paragraph (e) of this Section 5.115.10.
(c) Promptly notify the Administrative Agent If any additional Subsidiary of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law Borrower (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded an Immaterial Subsidiary, if any additional direct an Unrestricted Subsidiary, a Qualified CFC Holding Company, a CFC or indirect a Domestic Subsidiary of Dutch Borrower a CFC) is formed or acquired after the Second Amendment Effective Date (with (i) any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Restricted Subsidiary being deemed to constitute the acquisition of a Subsidiary, (ii) any Immaterial Subsidiary being designated a Material Subsidiary being deemed to constitute the acquisition of a Subsidiary and (iii) any transaction or event resulting in a Subsidiary ceasing to be a Qualified CFC Holding Company, a CFC or a Domestic Subsidiary of a CFC being deemed to constitute the acquisition of a Subsidiary), (i) within 15 10 Business Days after the date such Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 30 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of the Borrower or any other Subsidiary Loan Party, subject in each case to paragraph (ge) belowof this Section 5.10.
(ei) [Reserved.]
(f) Furnish to In each case other than in connection with the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable Acquisition, furnish to the Administrative Agent) Agent within 30 Business Days thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (or equivalent) with respect to Holdings, the extent relevant in Borrower and the applicable jurisdiction of organization), (D) in Subsidiary Loan Parties; provided that the Borrower shall not effect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the applicable Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Parties and (ii) Liens required to be granted from time to time pursuant to, promptly notify the Administrative Agent if any material portion of the Collateral is damaged or any other requirements of, the destroyed.
(e) The Collateral and Guarantee Requirement and the Security Documents shall other provisions of this Section 5.10 need not be subject satisfied with respect to exceptions any Excluded Assets or Excluded Equity Interests (each as defined in the Collateral Agreement) or any exclusions and limitations carve-outs from the perfection requirements set forth in the Security DocumentsCollateral Agreement.
(hf) [Reserved]Nothing in this Section 5.10 shall require Holdings, the Borrower or any other Loan Party to take any action outside the United States to create or perfect any security interests in any Collateral located outside of the United States or of a Foreign Subsidiary (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any foreign jurisdiction). Furthermore, with respect to real property, no perfection steps shall be required by any means other than (1) solely with respect to any properties subject to any mortgages on fee-owned Real Property not excluded from the Collateral pursuant to this Agreement (“Required Mortgages”), fixture filings pursuant to the UCC in the applicable UCC filing office of the relevant jurisdiction in which such fee-owned Real Property is located and (2) the recording of Required Mortgages in the applicable county offices referred to in the foregoing clause (1).
Appears in 1 contract
Further Assurances; Additional Security. (a) i. Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), documents) that the Collateral Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in .
ii. [Reserved.]
iii. 1. Grant and cause each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on such Owned on, any Material Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not covered by any then-existing MortgagesMortgaged Property as of the Fourth Restatement Effective Date, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of extent acquired after the Fourth Restatement Effective Date, within 90 days after such acquisition (or such later date as the Collateral Agent may agree in its reasonable discretion) pursuant to Section 5.11(g) documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Security DocumentsFourth Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”). Any Mortgage granted pursuant to this Section , which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of perfection recordation thereof, 2. Parent shallrecord or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed and 3. deliver to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify an updated Schedule 1.01(B) reflecting such additional Mortgaged Properties. Unless otherwise waived by the Collateral Agent thereofAgent, with respect to each such Additional Mortgage, the Borrowers shall cause the requirements set forth in clauses (f) and (iig) within 20 Business Days (in of the case definition of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the “Collateral and Guarantee Requirement Requirement” to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) belowMaterial Real Property.
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 90 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property as are not covered by any then-existing Mortgages, subject pursuant to any limitations required by documentation substantially in the form of Exhibit K (with such changes to account for local law (other than assets that (imatters) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which or otherwise in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties and (iv) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines, construction and earth moving equipment and other assets subject to certificates of title other than to the extent a Lien on such assets can be perfected by filing a UCC-1, (y) letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use” applications for trademark or service mark registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ Act, 15 U.S.C. §1051, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), in each case, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition and (xiv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided that (x) the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property” and (y) notwithstanding anything to the contrary herein or in this Agreement, the Security Documents, or any other Loan Document, the Segregated Account shall not constitute Excluded Property. Notwithstanding anything herein to the contrary, (iA) the Administrative Agent may grant extensions of time or waivers of requirements for the creation or perfection of security interests or other Liens in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers or collateral access agreements shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, nor shall the Administrative Agent be authorized to take any action outside the United States to create any security interest in assets located or titled outside of the United States or to perfect or make enforceable any security interests in any such assets, (E) share certificates of any person that is not a Subsidiary or of any Foreign Subsidiary shall not be required to be delivered, (F) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (G) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (H) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
Further Assurances; Additional Security. (a) Execute (i) As promptly as practicable, and in any event within the time periods after the Closing Date specified in Schedule 5.11 (or such later date as the Administrative Agent reasonably agrees to in writing), the Borrower shall deliver, or cause to be delivered, the documents or take the actions specified on Schedule 5.11 and (ii) after the Closing Date, the Borrower or any other Credit Party shall execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties Borrower, and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Collateral Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Credit Party directly or indirectly acquires fee-owned real property after the Amendment Effective Closing Date or (with any fee-owned by real property of (x) any Restricted Subsidiary that is acquired after the Closing Date and becomes a Credit Party, (y) any subsidiary that is designated a Restricted Subsidiary pursuant to a Subsidiary Redesignation and becomes a Credit Party and (z) any Immaterial Subsidiary that is designated a Material Subsidiary and becomes a Credit Party being deemed to have been acquired after the Closing Date) that has a fair market value of [REDACTED – Dollar Amount]or more on an entity individual basis at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of acquisition of fee ownership of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) real property (i) notify the Collateral Administrative Agent and provide the Administrative Agent with a complete description of such property (including its legal description) reasonably promptly following the acquisition thereof, (ii) cause each such fee-owned real property to be subject to a registered mortgage or deed of trust securing the Obligations, in form and substance reasonably acceptable to the Administrative Agent [REDACTED – Time Period] of the date of such acquisition (or ownership such longer period as may be agreed by the Administrative Agent), (iii) obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies (or local equivalent lender’s title insurance policies for real property outside of the United States) in form and substance, with endorsements (iiincluding zoning endorsements where available) subject and in amounts reasonably acceptable to the Administrative Agent (where applicablethe “Mortgage Policies”), (iv) to the Agreed Guarantee extent reasonably requested by the Administrative Agent, obtain American Land Title Association/American Congress on Surveying and Security Principles Mapping form surveys (or local equivalent), dated no more than [REDACTED – Time Period] the date of their delivery to the Administrative Agent, certified to the Administrative Agent and the provisions issuer of the Security DocumentsMortgage Policies in a manner reasonably satisfactory to the Administrative Agent, cause (v) obtain (A) customary, favorable opinions of local counsel or title insurance to the applicable Credit Parties (x) with respect to the enforceability and perfection of any such asset mortgage or deed of trust in the states or provinces in which such fee-owned real properties are located and (y) with respect to the valid existence, corporate power and authority of the applicable Credit Parties in the granting of such mortgage or deed of trust in the states, provinces or federal jurisdictions in which the Credit Parties party to such mortgages or deeds of trust are organized or formed or (B) title insurance, as applicable, (vi) if any such fee-owned real property is located within a “special flood hazard area” as determined by the Federal Emergency Management Agency, provide to the Administrative Agent (A) written acknowledgment by the applicable Credit Party of receipt of written notification from the Administrative Agent that such property is in a “special flood hazard area” and whether such property is participating in the National Flood Insurance Program and (B) evidence of such flood insurance as may be subjected to required under applicable law and otherwise consistent with the requirements of Section 5.2 and naming the Administrative Agent as sole loss payee on behalf of the Secured Parties or evidence of such other insurance required by the Administrative Agent, acting reasonably, in any other jurisdiction where a Lien (Credit Party acquires fee-owned real property subject to any Permitted Liensthis provision and (vii) securing the Obligations by, and take, and cause the Subsidiary Loan Parties applicable Credit Party to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause paragraph (a) of this Section 5.11, all in each case, at the expense of the Loan Credit Parties, subject to the final paragraph (e) of this Section 5.11.
(c) Promptly notify the Administrative Agent If any additional subsidiary of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law Borrower (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any an Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower ) is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)Closing Date, (i) within 15 Business Days [REDACTED – Time Period] after the date such Subsidiary subsidiary is formed or acquired (or first becomes subject to such requirement) longer period as may be agreed by the Administrative Agent), notify the Administrative Agent and the Lenders thereof and, [REDACTED – Time Period] after the date such subsidiary is formed or acquired (or such longer period as the Collateral Administrative Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary subsidiary owned by or on behalf of the Borrower or any Loan other Credit Party, subject in each case to paragraph (ge) belowof this Section 5.11.
(ed) [Reserved.]
(fi) Furnish to In each case other than in connection with the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable Acquisition, furnish to the Administrative Agent) Agent within [REDACTED – Time Period] thereafter written notice of any change in (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity organizational structure or organizational structure, (C) in any Loan Party’s organizational identification number (or equivalent) with respect to the extent relevant in Borrower and the applicable jurisdiction of organization), (D) in other Credit Parties; provided that the Borrower shall not effect or permit any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, UCC or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all Collateral (to the Collateral in which a security interest may be perfected by such filing, extent otherwise required hereunder) for the benefit of the applicable Secured PartiesParties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(ge) The Collateral and Guarantee Requirement and the other provisions of this Section 5.11 need not be satisfied with respect to any Excluded Property or any exclusions and carve-outs from the perfection requirements set forth in the applicable Security Agreement.
(f) With respect to real property, no perfection steps shall be required by any means other than (1) solely with respect to any properties subject to any mortgages on fee-owned real property not excluded from the Collateral pursuant to this Agreement (“Required Mortgages”), fixture filings pursuant to the UCC in the applicable UCC filing office of the relevant jurisdiction in which such fee-owned real property is located and (2) the recording of Required Mortgages in the applicable county offices referred to in the foregoing clause (1). Notwithstanding anything to the contrary in this Agreement, the Pledge and Security Documents, Agreement or any other Loan Credit Document, (ix) the Administrative Agent may grant extensions of time for for, or waive the requirements to obtain, the creation or perfection of security interests in in, or the obtaining of title insurance (including title insurance) or and surveys with respect to to, particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Credit Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection the cost, burden or consequences (including adverse Tax consequences) of obtaining of or perfecting a security interest in such items cannot be accomplished without undue effort or expense on assets is excessive in relation to the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents practical benefit afforded thereby; and (iiy) Liens required to be granted from time to time pursuant to, or any other requirements of, to the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsCollateral Documents and, to the extent appropriate in the applicable jurisdictions, as otherwise agreed between the Administrative Agent and the Borrower.
(h) [Reserved].
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), documents) that the Collateral Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph [Reserved.]
(c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership Grant and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions cause each of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on such Owned on, any Material Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not covered by any then-existing MortgagesMortgaged Property as of the Fourth Restatement Effective Date, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of extent acquired after the Fourth Restatement Effective Date, within 90 days after such acquisition (or such later date as the Collateral Agent may agree in its reasonable discretion) pursuant to Section 5.11(g) documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Security DocumentsFourth Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”). Any Mortgage granted pursuant to this Section , which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of perfection recordation thereof. Parent shall, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Additional Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, and (iii) deliver to the Collateral Agent an updated Schedule 1.01(B) reflecting such additional Mortgaged Properties. Unless otherwise waived by the Collateral Agent, with respect to each such Additional Mortgage, the Borrowers shall cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch Borrower the Borrowers is formed or acquired after the Amendment Fourth Restatement Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretionshall agree), notify the Collateral Agent thereofthereof and, and within twenty (ii20) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent shall agree (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement”, within 90 days after such formation or acquisition or such longer period as set forth therein or as the Collateral Agent may agree in its sole reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Fourth Restatement Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Collateral Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Collateral Agent shall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(fi) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization)number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrowers shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesParties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to (i) any Real Property held by the Borrowers or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $20,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Fourth Restatement Effective Date (other than Equity Interests in the Borrowers or, in the case of any person which is a Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiary) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (B) with respect to contractual obligations, such obligation existed at the time of the acquisition thereof and was not created or made binding on such Equity Interests in contemplation of or in connection with the acquisition of such subsidiary, (v) any assets acquired after the Fourth Restatement Effective Date, to the extent that, and for so long as, taking such actions would violate an enforceable contractual obligation binding on such assets that existed at the time of the acquisition thereof and was not created or made binding on such assets in contemplation or in connection with the acquisition of such assets (except in the case of assets acquired with Indebtedness permitted pursuant to Section 6.01(i) or Section 6.01(r) (if of the type permitted by Section 6.01(i)) that is secured by a Permitted Lien); provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses (iv) and (v) above, or (vi) any Subsidiary or asset with respect to which the Administrative Agent determines in its reasonable discretion that the cost of the satisfaction of the Collateral and Guarantee Requirement or the provisions of this Section 5.10 or of any Security Documents Document with respect thereto (including, without limitation, delivery of Foreign Pledge Agreements) is excessive in relation to the value of the security afforded thereby. Notwithstanding anything herein to the contrary, to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as reasonably agreed by Holdings and the Collateral Agent (subject to exceptions and limitations set forth any applicable laws in the Security Documentsrelevant jurisdiction).
(h) [Reserved]Upon the reasonable request (in each case, taking into account the relative costs (to the Loan Parties) and benefits (to the Secured Parties)) of the Collateral Agent or the Required Lenders, take, or cause to be taken, such action as may be reasonably requested (including, without limitation (i) subject to the above-mentioned cost benefit analysis, the execution and delivery of pledge or security agreements governed by applicable local law and (ii) the filing of financing statements) in order to perfect (or maintain the perfection of) the security interests (or take any analogous actions under the applicable provisions of local law in order to protect such security interests) in any Equity Interests in any Foreign Subsidiary owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted to be taken under the laws of the applicable jurisdictions. Furthermore, Holdings will, and will cause the other Loan Parties that are Subsidiaries of Holdings to, deliver to the Collateral Agent such opinions of counsel and other related documents as may be reasonably requested by the Collateral Agent to assure itself with the Loan Parties’ compliance with this Section 5.10(h).
(i) Complete each of the actions described on Schedule 5.10 as soon as commercially reasonable and by no later than the date set forth in Schedule 5.10 with respect to such action or such later date to which the Collateral Agent may reasonably agree.
Appears in 1 contract
Sources: First Lien Credit Agreement (Zurn Water Solutions Corp)
Further Assurances; Additional Security. Subject to any applicable intercreditor agreement:
(a) Execute If any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense Subsidiary of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party Borrower that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which not an Excluded Subsidiary is covered by paragraph (c) below) is formed or acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent including, without limitation, pursuant to the Security Documents an LLC Division or LP Division or the Collateral and Guarantee Requirements), Holdings, such Borrower creation of a new Series LLC or such Subsidiary Loan Party, as applicable, will promptly as practicable Series LP) (and in any event within 30 days) provided that each of (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being Loan Party and (ii) any Excluded Subsidiary ceasing to be an Excluded Subsidiary but remaining a Subsidiary, shall be deemed to constitute the acquisition of a SubsidiarySubsidiary for all purposes of this Section 5.10), (i) within 15 10 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofin writing thereof and, and (ii) within 20 30 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reserved.]
(fb) Furnish to the Collateral Agent prompt written notice of (and in any event within 20 30 days after such change or such longer period as may be acceptable to the Administrative Agentafter) written notice of any change (A) in any Loan Party’s corporate or organization legal name, (B) in any Loan Party’s identity or organizational structuretype of organization, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to that is not a registered organization; provided that the extent relevant in the applicable jurisdiction of organization); provided, that Borrower shall not effect or permit any such change unless all filings have been mademade by the Borrower, or will have been made by the Borrower under the Uniform Commercial Code within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction ) that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral of such Loan Party in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (TravelCenters of America Inc. /MD/)
Further Assurances; Additional Security. Subject to Section 5.13:
(a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registriesdocuments), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11[Reserved].
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below[Reserved].
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Wholly-Owned Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (including pursuant to a Division/Series Transaction) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Domestic Subsidiary that is not an Unrestricted Subsidiary or a FSHCO (other than, at the Borrower’s option, Immaterial Subsidiaries), (i) within 15 ten Business Days after the date such Wholly-Owned Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly-Owned Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Wholly-Owned Subsidiary and with respect to any Equity Interest in or Indebtedness of such Wholly-Owned Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (gf) below.
(e) [Reserved.]
(fi) Furnish to the Collateral Administrative Agent prompt at least ten (and in any event within 20 10) days after such change or such longer period as may be acceptable to the Administrative Agent) prior written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, or (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location number; provided that none of the chief executive office of Loan Parties shall effect or permit any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesParties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(gf) The Collateral and Guarantee Requirement, and the other provisions of this Section 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) [reserved], (ii) [reserved], (iii) pledges and security interests to the extent prohibited by applicable law, rule, regulation or contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) [reserved], (v) any assets, to the extent a security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, and (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law; provided that (A) upon the reasonable request of the Administrative Agent, Holdings and the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clause (iii) above, and (B) the foregoing exclusions of clause (iii), (vi), or (viii) above shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) to apply to the extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the taking of any other actions to perfect by control any security interest in any deposit accounts, securities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation requirements of creating or perfection of perfecting security interests in or the obtaining of insurance (including title insurance) or surveys legal opinions with respect to particular assets (including extensions beyond the Amendment TwoThree Effective Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement to this Agreement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Verso Corp)
Further Assurances; Additional Security. After the Restatement Date:
(a) Execute execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that may be required under any applicable Law, or that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents.
(b) [Reserved].
(c) promptly notify the Collateral Agent of the acquisition of any fee-owned Real Property (other than Excluded Property) of any Loan Party that (i) is not covered by a Mortgage previously delivered pursuant to the Collateral and Guarantee Requirement, (ii) is acquired on or after the First Amendment Effective Date and (iii) has an individual fair market value (as determined in good faith by Holdings in consultation with the Administrative Agent) at the time of acquisition in excess of $5,000,000, and, subject to clause (vii)(D) of the definition of “Collateral and Guarantee Requirement”, deliver or cause each the Loan Party to deliver to the Collateral Agent within 90 days (or such longer period as the Administrative Agent shall determine in its reasonable discretion, without any requirement for Lender consent) of the acquisition of such Real Property, a Mortgage (each, an “Additional Mortgage”), flood insurance information, Title Policies, surveys, opinions and such other documents as are required to be delivered with respect to each case Mortgaged Property set forth on Schedule 1.01(b) pursuant to clauses (vii) – (x) of the definition of “Collateral and Guarantee Requirement” as if such clauses referred to such Real Property acquired on or after the Restatement Date, mutatis mutandis, subject to paragraph (g) below. If Notwithstanding the Administrative Agent or foregoing, the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared shall not enter into any Mortgage in respect of the Mortgaged any Real Property of any Subsidiary Loan Party that is not subject to a Mortgage as of the Restatement Date prior to the date that is 20 Business Days after the date on which the Collateral Agent has made available to the Lenders (which may be delivered electronically) the following documents in respect of such Real Property: (i) a completed life of loan flood hazard determination from a third party vendor; (ii) if such Real Property is located in a “special flood hazard area”, (A) a notification to the applicable Loan Party of that fact and (if applicable) notification to the applicable Loan Party that flood insurance coverage is not available and (B) evidence of the receipt by the applicable Loan Party of such notice; and (iii) if such notice is required to be provided to the applicable Loan Party and flood insurance is available in the community in which such Real Property is located, evidence of required flood insurance with respect to such Real Property in an amount and otherwise in compliance with all applicable flood insurance laws and regulations. Additionally, and notwithstanding the foregoing, if (I) all or a portion of any Real Property located within the United StatesStates is in a designated “flood hazard area” on any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency) and (II) the Administrative Agent reasonably determines that obtaining and/or maintaining such mortgage would impose an unreasonable or excessive administrative or financial burden on the Loan Parties and/or the Administrative Agent, then the Dutch Borrower shall Administrative Agent may post a notice to the Lenders on the Platform (1) identifying such Real Property, (2) reporting the net book value of such Real Property as furnished by the applicable Loan Party, (3) noting the Administrative Agent’s intention to waive the requirement that such Real Property be subject to a mortgage, (4) notifying the Lenders that there is a five Business Day period from the time of such posting to object in writing to such waiver and (5) including such other information as the Administrative Agent may reasonably determine to include, and if Lenders (other than any Defaulting Lenders) holding at least 5.0% of the aggregate amount of all then-outstanding Term Loans and Revolving Facility Commitments (funded and unfunded) do not provide to the Administrative Agent such appraisals to the extent required byAgent, and in reasonably satisfactory compliance with, any applicable requirements within five Business Days of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien posting of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements)notice, Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect written objections to such assetintention to waive, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify then the Administrative Agent of may, without any further need for Lender consent, waive the acquisition after the Amendment Effective Date of any Owned requirement set forth above that such Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, be subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) belowmortgage.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Wholly Owned Domestic Subsidiary or Wholly Owned Canadian Subsidiary of Dutch Borrower Holdings (in each case, other than an Excluded Subsidiary) is formed or acquired (including pursuant to a Division) on or after the First Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) and if such Wholly Owned Domestic Subsidiary or Wholly Owned Canadian Subsidiary is a Material Subsidiary, within 15 ten Business Days after the date such Wholly Owned Domestic Subsidiary or Wholly Owned Canadian Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly Owned Domestic Subsidiary or Wholly Owned Canadian Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree shall determine in its sole reasonable discretion, without any requirement for Lender consent), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Wholly Owned Domestic Subsidiary and Wholly Owned Canadian Subsidiary and with respect to any Equity Interest in or Indebtedness of such Wholly Owned Domestic Subsidiary and Wholly Owned Canadian Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reservedif any additional Foreign Subsidiary of Holdings or Products (other than a Wholly Owned Canadian Subsidiary) is formed or acquired on or after the Restatement Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), and if such Subsidiary is a “first tier” Foreign Subsidiary, within five Business Days after the date such Foreign Subsidiary is formed or acquired, notify the Collateral Agent and the Lenders thereof and, within 20 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall determine in its reasonable discretion, without any requirement for Lender consent), cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to paragraph (g) below.]
(fi) Furnish furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, structure or (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organizationif any); provided, that neither Holdings nor Products shall effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, the PPSA, the Civil Code of Quebec or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesParties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents other provisions of this Section 6.10 need not be satisfied with respect to, and the Collateral shall be subject to exceptions and limitations set forth in the Security Documentsnot include, any Excluded Property or Excluded Securities.
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Further Assurances; Additional Security. Subject to Section 5.13:
(a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages statements and other documents and recordings of Liens in stock registriesdocuments), that may be required under any applicable law, or that the Collateral Administrative Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Administrative Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11[Reserved].
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below[Reserved].
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Wholly-Owned Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (including pursuant to a Division/Series Transaction) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Domestic Subsidiary that is not an Unrestricted Subsidiary or a FSHCO (other than, at the Borrower’s option, Immaterial Subsidiaries), (i) within 15 ten Business Days after the date such Wholly-Owned Subsidiary is formed or acquired, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after the date such Wholly-Owned Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretionshall agree, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Wholly-Owned Subsidiary and with respect to any Equity Interest in or Indebtedness of such Wholly-Owned Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (gf) below.
(e) [Reserved.]
(fi) Furnish to the Collateral Administrative Agent prompt at least ten (and in any event within 20 10) days after such change or such longer period as may be acceptable to the Administrative Agent) prior written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, or (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location number; provided that none of the chief executive office of Loan Parties shall effect or permit any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion)any statutory period, under the Uniform Commercial Code, PPSA, Code or equivalent in any applicable jurisdiction otherwise that are required in order for the Collateral Administrative Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesParties and (ii) promptly notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(gf) The Collateral and Guarantee Requirement, and the other provisions of this Section 5.10, need not be satisfied with respect to any of the following (collectively, the “Excluded Assets”): (i) [reserved], (ii) [reserved], (iii) pledges and security interests to the extent prohibited by applicable law, rule, regulation or contractual obligation with an unaffiliated third party (in each case, so long as such contractual obligation was not entered into in contemplation of the acquisition thereof and except to the extent such prohibition is unenforceable after giving effect to the applicable provisions of the Uniform Commercial Code or other applicable law), (iv) [reserved], (v) any assets, to the extent a security interest in such assets would reasonably be expected to result in a material adverse tax consequence as determined in good faith by the Borrower, (vi) any lease, license, contract or other agreement to the extent that a grant of a security interest therein would violate, result in a breach of the terms or abandonment or unenforceability of, constitute a default under or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than Holdings, the Borrower or any Subsidiary) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law, (vii) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, and (viii) any governmental licenses or state or local franchises, charters and authorizations, to the extent a security interest in such licenses, franchises, charters or authorizations is prohibited or restricted thereby, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code or other applicable law; provided that (A) upon the reasonable request of the Administrative Agent, Holdings and the Borrower shall, and shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clause (iii) above, and (B) the foregoing exclusions of clause (iii), (vi), or (viii) above shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is terminated or rendered unenforceable or ineffective as a result of applicable law, (2) to apply to the extent that any consent or waiver has been obtained that would permit the Administrative Agent’s security interest or lien notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, license agreement, other agreement or other property or asset or (3) to limit, impair, or otherwise affect any of the Administrative Agent’s any other Secured Party’s continuing security interests in and liens upon any rights or interests of any Loan Party in or to (x) monies due or to become due under or in connection with any assets referred to in such clauses, or (y) any monies, consideration and proceeds from the sale, license, lease, assignment, transfer or other disposition of any assets referred to in such clauses. In addition, the Collateral and Guarantee Requirement and the other provisions of the Loan Documents shall not require any account control agreements or lockbox arrangements or the taking of any other actions to perfect by control any security interest in any deposit accounts, securities accounts or commodities accounts except as provided in Section 5.11. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation requirements of creating or perfection of perfecting security interests in or the obtaining of insurance (including title insurance) or surveys legal opinions with respect to particular assets (including extensions beyond the Amendment Two Effective Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents Documents, and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement to this Agreement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Sources: Credit Agreement (Verso Corp)
Further Assurances; Additional Security. (1) If (a) Execute any and all further documentsa Restricted Subsidiary (other than an Excluded Subsidiary) of the Borrower is formed or acquired or ceases to be an Excluded Subsidiary after the ClosingFourth Amendment Effective Date or, financing statements(b) an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, agreements and instrumentswithin five or (c) an Immaterial Subsidiary existing on the Fourth Amendment Effective Date is not dissolved, and take all liquidated or merged out of existence within 90 days following such further actions (including date, then, in each case, the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that Borrower shall promptly notify the Collateral Agent may reasonably requestthereof and, within 15 Business Days after the date such Restricted Subsidiary is formed or, acquired or such Unrestricted Subsidiary is redesignated as a Restrictedor ceases to be an Excluded Subsidiary, as applicable, notify (or such longer period as the Collateral Agent thereof andagrees in its discretion), or, for Immaterial Subsidiaries, within 201 Business Days afterDay following the post-closing date such Restricted Subsidiary is formed or acquiredset forth in clause (c) above (or such longer period as the Collateral Agent agrees), as applicable, the Borrower will or will cause such Restricted Subsidiary or Immaterial Subsidiary, as applicable, to:
(i) deliver a joinder to the Collateral Agreement, substantially in the form specified therein, duly executed on behalf of such Restricted Subsidiary;
(ii) to the extent required by and subject to the exceptions set forth in the Collateral Agreement, pledge the outstanding Equity Interests (other than Excluded Equity Interests) owned by such Restricted Subsidiary, and cause each Loan Party owning any Equity Interests issued by such Restricted Subsidiary to pledge such outstanding Equity Interests (other than Excluded Equity Interests), and deliver all certificates (if any) representing such Equity Interests, together with stock powers or other instruments of transfer with respect thereto endorsed in blank, to satisfy the Collateral Agent (or a designated bailee thereof);
(iii) to the extent required by and Guarantee Requirement and subject to cause the exceptions set forth in this Section 5.10 or the Security Documents, deliver to the Collateral Agent (or a designated bailee thereof) Uniform Commercial Code financing statements with respect to such Restricted Subsidiary and Guarantee Requirement such other documents reasonably requested by the Collateral Agent to create the Liens intended to be created under the Security Documents and remain satisfiedperfect such Liens to the extent required by the Security Documents; and
(iv) except as otherwise contemplated by this Section 5.10 or any Security Document, obtain all at consents and approvals required to be obtained by it in connection with (A) the expense execution and delivery of all Security Documents (or supplements thereto) to which it is a party and the granting by it of the Liens thereunder and (B) the performance of its obligations thereunder.; and
(v) deliver all documentation and other information about such Restricted Subsidiary or Immaterial Subsidiary that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(2) (A) If any Loan Parties Party (i)(a) acquires fee simple title in Real Property after the ClosingFourth Amendment Effective Date or (b) owns fee simple title in Real Property on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof, that, combined with all other Real Property owned in fee simple by the Loan Partiesin each case of subclauses (a) and provide (b) of this clause (A)(i), on the date of such acquisition or joinder, as applicable, has an aggregateindividual fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $50.0 million or more in consultation with the Collateral Agent) of $2.5 million or more or (ii)(a) acquires a leasehold interest in Real Property after the Fourth Amendment Effective Date with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center or (b) owns leasehold title in Real Property with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center on the date it enters a joinder pursuant to Section 5.10(1)(i) hereof or (B) any Non-Mortgageable Lease of a Loan Party with respect to a full-line Neiman Marcus or Bergdorf ▇▇▇▇▇▇▇ store or a warehouse or distribution center ceases to be a Non-Mortgageable Lease hereunder, then in each case of the foregoing clauses (A) and (B) above, within 20 Business Days (unless otherwise agreed by the Collateral Agent in its sole discretion) after such acquisition or entry of a joinder or such Non-Mortgageable Lease ceases to be a Non-Mortgageable Lease hereunder (as applicable):
(a) notify the Collateral Agent thereof;
(b) cause any such acquired Real Property owned in fee simple that has a fair market value (as determined in good faith by a Responsible Officer of the Borrower) of $7.5 in consultation with the Collateral Agent) of $2.5 million or more to be subjected to a customary mortgage or deed of trust securing the Obligations;
(c) cause any such acquired or owned leasehold Real Property to be subjected to a customary mortgage or deed of trust securing the Obligations;
(d) (c) with respect to any such Real Property, to the extent requested by the Collateral Agent in its sole discretion, obtain fully paid American Land Title Association Lender’s Extended Coverage title insurance policies, with endorsements (including a standard survey endorsement or equivalent (only with respect to any such Real Property acquired or owned in fee simple) and zoning endorsements where available) and in customary amounts that in no event shall be less than fair market value of such Real Property (the “Mortgage Policies”);
(e) (d) with respect to any such Real Property acquired or owned in fee simple pursuant to Section 5.10(2)(A), to the extent necessary to issue the Mortgage Policies, obtain American Land Title Association/American Congress on Surveying and Mapping form surveys, dated no more than 30 days before the date of their delivery to the Collateral Agent, from time certified to time upon reasonable requestthe Collateral Agent, evidence on behalf of itself and each Lender, and the issuer of the Mortgage Policies in a manner reasonably satisfactory to the Collateral Agent and sufficient for the issuer of the Mortgage Policies to omit as an exception to each title policy the standard printed survey exception relating to such Real Property;
(f) (e) provide evidence of insurance (including all insurance required to comply with applicable flood insurance lawsFlood Insurance Laws) naming the Collateral Agent ason behalf of itself and each Lender as lender loss payee and additional insured with such responsible and reputable insurance companies or associations, and in such amounts and covering such risks, as are reasonably available for similar for similar properties in the same geographical area and as are reasonably satisfactory to the perfection Collateral Agent (including in the case of all insurance required to comply with applicable Flood Insurance Laws, in such amounts and priority of covering such risks as are reasonably satisfactory to each Lender), including the Liens created or intended to be created insurance required by the Security Documents, subject in each case to paragraph terms of any mortgage or deed of trust;
(g) below. If (f) obtain customary mortgage or deed of trust enforceability opinions of local counsel for the Administrative Agent Loan Parties in the states in which such acquired Real Properties owned in fee simple are located; and
(h) (g) take, or cause the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirements), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.11each case, all at the expense of the Loan Parties, subject to the final paragraph (5) of this Section 5.115.10.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereof, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reserved.]
(f3) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) five Business Days prior written notice of any change (A) in any Loan Party’s ’s:
(a) corporate or organization name, ;
(Bb) in any Loan Party’s identity or organizational structure, ;
(Cc) location (determined as provided in any Loan Party’s UCC Section 9-307); or
(d) organizational identification number (to the extent relevant or equivalent) or, solely if required for perfecting a security interest in the applicable jurisdiction of organization)jurisdiction, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured PartiesFederal Taxpayer Identification Number;.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved].
Appears in 1 contract
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestwritten request by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $10,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent in writing of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(ci) Promptly notify the Administrative Agent Grant and cause each of the acquisition after the Amendment Effective Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on such Owned Mortgages on, any Material Real Property of the Borrower or such Subsidiary Loan Parties, as applicable, that are not covered by any then-existing Mortgagesacquired after the Closing Date, subject to any limitations required by local law within 120 days after the acquisition thereof (other than assets that (ior such later date as the Administrative Agent may agree in its reasonable discretion) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which in a Lien on such assets securing customary form for Affiliates of the Obligations is not permitted or (ii) are not required to become subject Fund and otherwise reasonably satisfactory to the Liens of Administrative Agent and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Borrower, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, and (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties. Unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, the Borrower shall cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (including, without limitation, pursuant to a Delaware LLC Division) (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofin writing thereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent in writing thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization)number, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything The Collateral and Guarantee Requirement and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) motor vehicles and other assets subject to certificates of title, letter of credit rights (in each case, other than to the contrary extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and commercial tort claims with a value of less than $10,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in this Agreementcontemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the Security Documentsextent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other Loan Documentconsequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code, (viii) any “intent-to-use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Administrative Agent and the Borrower, (x) Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, and any other assets subject to Liens securing Permitted Securitization Financings, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa), (mm) or (oo) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code or other applicable law), (xiv) all assets of Holdings other than, prior to a Qualified IPO, Equity Interests of the Borrower directly held by Holdings and pledged pursuant to the Holdings Guarantee and Pledge Agreement and (xv) any other exceptions mutually agreed upon between the Borrower and the Administrative Agent; provided, that the Borrower may in its sole discretion elect to exclude any property from the definition of “Excluded Property.” Notwithstanding anything herein to the contrary, (A) the Administrative Agent may grant extensions of time or waiver of requirement for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable effortsBorrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and Documents, (iiB) no control agreement or control, lockbox or similar arrangement shall be required with respect to any deposit accounts, securities accounts or commodities accounts, (C) no landlord, mortgagee or bailee waivers shall be required, (D) no foreign-law governed security documents or perfection under foreign law shall be required, (E) no notice shall be required to be sent to account debtors or other contractual third parties prior to an Event of Default, (F) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security DocumentsDocuments and (G) to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording or similar tax, the amount secured by the Security Document with respect to such Mortgaged Property shall be limited to the fair market value of such Mortgaged Property as determined in good faith by the Borrower (subject to any applicable laws in the relevant jurisdiction or such lesser amount agreed to by the Administrative Agent).
(h) [Reserved].
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request, to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered by paragraph (c) below) is acquired by Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee RequirementsRequirements ), Holdings, such Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent or required under Requirements of Law to perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such asset, including actions described in clause (a) of this Section 5.11, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11.
(c) Promptly notify the Administrative Agent of the acquisition after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time as the Administrative Agent shall agree in its sole discretion) will grant and cause the applicable Loan Parties to grant to the Collateral Agent security interests in and mortgages on such Owned Real Property as are not covered by any then-existing Mortgages, subject to any limitations required by local law (other than assets that (i) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject to the Liens of the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section shall constitute a valid and enforceable first-priority Lien, subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shall, and shall cause each such applicable Subsidiary Loan Party to record or file the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable in connection therewith, in each case subject to paragraph (g) below.
(d) Other than in the case of any Excluded Subsidiary, if (i) any additional direct or indirect Subsidiary of Dutch Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary), (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Agent may agree in its sole discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Agent may agree in its sole discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph (g) below.
(e) [Reserved.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of organization); provided, that all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Agent may agree in its sole discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the Collateral and Guarantee Requirement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) [Reserved]The Dutch Borrower shall or shall cause the applicable Loan Party to take such actions set forth on Schedule 5.11(h) within the timeframes set forth for the taking of such actions on Schedule 5.11(h) (or within such longer timeframes as the Administrative Agent shall permit in its reasonable discretion) (it being understood and agreed that all representations, warranties and covenants of the Loan Documents with respect to the taking of such actions are qualified by the non-completion of such actions until such time as they are completed or required to be completed in accordance with this Section 5.11(h)).
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Further Assurances; Additional Security. (a) Execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements, fixture filings, Mortgages and other documents and recordings of Liens in stock registriesdocuments), that the Collateral Administrative Agent may reasonably requestrequest (including, without limitation, those required by applicable law), to satisfy the Collateral and Guarantee Requirement and to cause the Collateral and Guarantee Requirement to be and remain satisfied, all at the expense of the Loan Parties and provide to the Collateral Agent, from time to time upon reasonable requestrequest by the Administrative Agent, evidence reasonably satisfactory to the Collateral Administrative Agent as to the perfection and priority of the Liens created or intended to be created by the Security Documents, subject in each case to paragraph (g) below. If the Administrative Agent or the Collateral Agent reasonably determines (in consultation with the Dutch Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Subsidiary Loan Party that is located in the United States, the Dutch Borrower shall provide to the Administrative Agent such appraisals to the extent required by, and in reasonably satisfactory compliance with, any applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA.
(b) If any asset (other than Real Property which is covered Property) that has an individual fair market value (as determined in good faith by paragraph (cthe Borrower) below) in an amount greater than $5,000,000 is acquired by Holdings, Dutch Borrower, Co-the Borrower or any Subsidiary Loan Party after the Amendment Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (in each case other than (x) assets constituting Collateral under a Security Document that become subject to the Lien of such Security Document upon acquisition thereof or and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to the Security Documents or the Collateral and Guarantee Requirementsconstituting Excluded Property), Holdings, such the Borrower or such Subsidiary Loan Party, as applicable, will promptly as practicable (and in any event within 30 days) (i) notify the Collateral Agent of such acquisition or ownership and (ii) subject (where applicable) to the Agreed Guarantee and Security Principles and the provisions of the Security Documents, cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations by, and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Administrative Agent or required under Requirements of Law to grant and perfect such Lien and to satisfy the Collateral and Guarantee Requirement to be satisfied with respect to such assetLiens, including actions described in clause (a) of this Section 5.115.10, all at the expense of the Loan Parties, subject to the final paragraph of this Section 5.11clause (g) below.
(c) Promptly notify the Administrative Agent of Within 90 days after the acquisition of any Material Real Property after the Amendment Effective Closing Date of any Owned Real Property (which for this clause (c) shall include the improvement of any Real Property that was not Owned Real Property that results in it qualifying as Owned Real Property) and within 30 days after such acquisition (or such longer time later date as the Administrative Agent shall may agree in its sole reasonable discretion), (i) will grant and cause each of the applicable Subsidiary Loan Parties to grant to the Collateral Agent security interests in in, and mortgages on Mortgages on, such Owned Material Real Property as are not covered by any then-existing Mortgages, subject pursuant to any limitations required by documentation substantially in the form of Exhibit K (with such changes to account for local law (other than assets that (imatters) are subject to permitted secured financing arrangements containing restrictions permitted by Section 6.09(c), pursuant to which or otherwise in a Lien on such assets securing the Obligations is not permitted or (ii) are not required to become subject form reasonably acceptable to the Liens of Borrower and the Collateral Agent pursuant to Section 5.11(g) or the Security Documents). Any Mortgage granted pursuant to this Section Administrative Agent, which security interest and mortgage shall constitute a valid and enforceable first-priority Lien, Liens subject to no other Liens except Permitted Liens at the time of perfection thereof. Parent shallLiens, (ii) record or file, and shall cause each such applicable Subsidiary Loan Party to record or file file, the Mortgage or instruments related thereto in such manner and in such places as is required by law to establish, perfect, preserve and protect the Liens in favor of the Collateral Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Mortgages and pay, and cause each such Subsidiary Loan Party to pay, in full, all Taxes, fees and other charges payable required to be paid in connection therewithwith such recording or filing, in each case subject to paragraph clause (g) below, (iii) deliver to the Collateral Agent an updated Schedule 1.01(E) reflecting such Mortgaged Properties and (iv) unless otherwise waived by the Administrative Agent, with respect to each such Mortgage, cause the requirements set forth in clauses (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) Other than in the case of any Excluded Subsidiary, if If any additional direct or indirect Subsidiary of Dutch the Borrower is formed or acquired after the Amendment Effective Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary or any Excluded Subsidiary ceasing to be an Excluded Subsidiary being deemed to constitute the acquisition of a Subsidiary)) and if such Subsidiary is a Subsidiary Loan Party, (i) within 15 Business Days after the date such Subsidiary is formed or acquired (or first becomes subject to such requirement) (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), notify the Collateral Agent thereofthereof and, and (ii) within 20 Business Days (in the case of a Domestic Subsidiary) or 60 days (in the case of a Foreign Subsidiary) after the date such Subsidiary is formed or acquired (or first becomes required to be a Subsidiary Loan Party) or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion (or, with respect to clauses (f), (g) and (h) of the definition of “Collateral and Guarantee Requirement,” within 120 days after such formation or acquisition or such longer period as set forth therein or as the Administrative Agent may agree in its reasonable discretion, as applicable), cause the Collateral and Guarantee Requirement to be satisfied with respect to such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party, subject in each case to paragraph clause (g) below.
(e) [ReservedIf any additional Foreign Subsidiary of the Borrower is formed or acquired after the Closing Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a “first tier” Foreign Subsidiary of a Loan Party, within 15 Business Days after the date such Foreign Subsidiary is formed or acquired (or such longer period as the Administrative Agent may agree in its reasonable discretion), notify the Collateral Agent thereof and, within 50 Business Days after the date such Foreign Subsidiary is formed or acquired or such longer period as the Administrative Agent may agree in its reasonable discretion, cause the Collateral and Guarantee Requirement to be satisfied with respect to any Equity Interest in such Foreign Subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.]
(f) Furnish to the Collateral Agent prompt (and in any event within 20 days after such change or such longer period as may be acceptable to the Administrative Agent) written notice of any change (A) in any Loan Party’s corporate or organization name, (B) in any Loan Party’s identity or organizational structure, (C) in any Loan Party’s organizational identification number (to the extent relevant in the applicable jurisdiction of organization), (D) in any Loan Party’s jurisdiction of organization or (ED) in the location of the chief executive office of any Loan Party (to the extent relevant in the applicable jurisdiction of that is not a registered organization); provided, that the Borrower shall not effect or permit any such change unless all filings have been made, or will have been made within 30 days following such change (or such longer period as the Collateral Administrative Agent may agree in its sole reasonable discretion), under the Uniform Commercial Code, PPSA, or equivalent in any applicable jurisdiction Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and perfected security interest in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties.
(g) Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (i) the Administrative Agent may grant extensions of time for the creation or perfection of security interests in or the obtaining of insurance (including title insurance) or surveys with respect to particular assets where it reasonably determines, in consultation with the Parent and after the Parent’s use of commercially reasonable efforts, that perfection or obtaining of such items cannot be accomplished without undue effort or expense on the terms or by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents and (ii) Liens required to be granted from time to time pursuant to, or any other requirements of, the The Collateral and Guarantee Requirement and the Security other provisions of this Section 5.10 and the other Loan Documents shall with respect to Collateral need not be satisfied with respect to any of the following (collectively, the “Excluded Property”): (i) any Real Property other than Material Real Property, (ii) (x) motor vehicles, railcars, trailers, aircraft, aircraft engines, construction and earth moving equipment and other assets subject to exceptions certificates of title other than to the extent a Lien on such assets can be perfected by filing a UCC-1, (y) letter of credit rights (in each case, other than to the extent a Lien on such assets or such rights can be perfected by filing a UCC-1) and limitations (z) commercial tort claims with a value of less than $5,000,000, (iii) pledges and security interests prohibited by applicable law, rule, regulation or contractual obligation (with respect to any such contractual obligation, only to the extent such restriction is permitted under Section 6.09(c) and such restriction is binding on such assets (1) on the Closing Date or (2) on the date of the acquisition thereof and not entered into in contemplation thereof (other than in connection with the incurrence of Indebtedness of the type contemplated by Section 6.01(i))) (in each case, except to the extent such prohibition is unenforceable after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law) or which could require governmental (including regulatory) consent, approval, license or authorization to be pledged (unless such consent, approval, license or authorization has been received), (iv) assets to the extent a security interest in such assets could reasonably be expected to result in material adverse tax consequences as determined in good faith by the Borrower in consultation with the Administrative Agent, (v) any lease, license or other agreement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than the Borrower or any Guarantor) after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code notwithstanding such prohibition, (vi) those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or other consequence of obtaining such a security interest or perfection thereof are excessive in relation to the value afforded thereby, (vii) any governmental licenses or state or local licenses, franchises, charters and authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of Article 9 of the Uniform Commercial Code and other applicable law, (viii) any “intent-to-use” applications for trademark or service ▇▇▇▇ registrations filed pursuant to Section 1(b) of the ▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇.▇.▇. §▇▇▇▇, unless and until an Amendment to Allege Use or a Statement of Use under Section 1(c) or 1(d) of the ▇▇▇▇▇▇ Act has been filed, (ix) other customary exclusions under applicable local law or in applicable local jurisdictions set forth in any applicable Security Documents or otherwise separately agreed in writing between the Security Documents.
Administrative Agent and the Borrower, (hx) [Reserved].Securitization Assets sold to any Special Purpose Securitization Subsidiary or otherwise pledged, factored, transferred or sold in connection with any Permitted Securitization Financing, (xi) any Excluded Securities, (xii) any Third Party Funds, (xiii) any equipment or other asset that is subject to a Lien permitted by any of clauses (c), (i), (j), (aa) or (mm) of Section 6.02 or is otherwise subject to a purchase money debt or a Capitalized Lease Obligation, in each case, as permitted by Section 6.01, if the contract or other agreement providing for such debt or Capitalized Lease Obligation prohibits or requires the consent of any person (other than the Borrower or any Guarantor) as a condition to the creation of any other security interest on such equipment or asset and, in each case, such prohibition or requirement is permitted hereunder (after giving effect to the applicable anti-assignment provisions of
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Sources: Credit Agreement (Cerence Inc.)