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) that the Collateral Agent may reasonably request (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. (b) If any asset (other than Real Property) that has an individual fair market value (as determined in good faith by the Borrowers) in an amount greater than $10,000,000 is acquired by the Borrowers or any Subsidiary Loan Party after the Third Restatement Effective 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 and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents), will (i) notify the Collateral Agent of such acquisition or ownership and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations and take, and cause the Subsidiary Loan Parties to take, such actions as shall be reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in clause (a) of this Section 5.10, all at the expense of the Loan Parties, subject to clause (g) below. (i) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests in, and mortgages on, any Material Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not Mortgaged Property as of the Third Restatement Effective Date, to the extent acquired after the Third 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 documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation thereof, (ii) record or file, and cause each such Subsidiary to record or 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 to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording or filing, in each case subject to 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) If any additional direct or indirect Subsidiary of the Borrowers is formed or acquired after the Third 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, within 15 Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall 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 (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 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 to clause (g) below. (e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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. (i) Furnish to the Collateral 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, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party 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 reasonable discretion), under the Uniform Commercial 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 and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed. (g) 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 $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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 Third 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 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 any applicable laws in the relevant jurisdiction). (h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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. (j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rexnord 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) documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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 PropertyProperty which is covered by paragraph (c) that has an individual fair market value (as determined in good faith by the Borrowersbelow) in an amount greater than $10,000,000 is acquired by the Borrowers Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Third Restatement 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 and (y) or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) the Security Documents or the Security DocumentsCollateral 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 grant and perfect such LiensLien 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 5.105.11, all at the expense of the Loan Parties, subject to clause (g) belowthe final paragraph of this Section 5.11.
(ic) Grant Promptly notify the Administrative Agent of the acquisition after the 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 each of the Subsidiary applicable Loan Parties to grant to the Collateral Agent security interests in, in and mortgages on, any Material on such Owned Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not Mortgaged Property as of 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 Third Restatement Effective Date, Obligations is not permitted or (ii) are not required to become subject to the extent acquired after the Third Restatement Effective Date, within 90 days after such acquisition (or such later date as Liens of the Collateral Agent may agree in its reasonable discretion) pursuant to documentation substantially in Section 5.11(g) or the form of Security Documents). Any Mortgage delivered granted pursuant to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage this Section shall constitute a valid and enforceable Liens second-priority Lien, subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation perfection thereof, (ii) record or file. Parent shall, 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 required to be paid payable in connection with such recording or filingtherewith, in each case subject to clause paragraph (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) If Other than in the case of any Excluded Subsidiary, if (i) any additional direct or indirect Subsidiary of the Borrowers Dutch Borrower is formed or acquired after the Third Restatement 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), 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 shall agreemay agree in its sole discretion), notify the Collateral Agent thereof and, within twenty (20) 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 reasonable sole 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 clause paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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[Reserved.]
(if) 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 numbernumber (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 that is not a registered (to the extent relevant in the applicable jurisdiction of 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 reasonable sole discretion), under the Uniform Commercial Code 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 and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyedParties.
(g) The 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 other provisions Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) 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 this Section 5.10 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 other Loan Documents with respect to Collateral need not be satisfied with respect to (i) any Real Property held the taking of such actions are qualified by the Borrowers non-completion of such actions until such time as they are completed or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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) required to be completed 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 Third 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(i5.11(h)) 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 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 any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
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) documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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) If any asset (other than Real Property) that has an individual fair market value (as determined in good faith by the Borrowers) in an amount greater than $10,000,000 5 million is acquired by the Borrowers Company or any Subsidiary other Loan Party after the Third Restatement Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (including, without limitation, any acquisition pursuant to a Delaware LLC Division) (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 and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents), will ) (i) notify the Collateral Agent of such acquisition or ownership thereof and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the applicable Obligations and take, and cause the Subsidiary other Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in clause paragraph (a) of this Section 5.10Section, all at the expense of the Loan Parties, subject to clause paragraph (g) below.
(ic) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests in, and mortgages on, any Material Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not Mortgaged Property as of the Third Restatement Effective Date, to the extent acquired after the Third 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 documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation thereof, (ii) record or file, and cause each such Subsidiary to record or 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 to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording or filing, in each case subject to 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[reserved].
(d) If any additional direct or indirect Domestic Subsidiary or Canadian Subsidiary of the Borrowers Company is formed or acquired after after, (i) in the Third case of a Domestic Subsidiary, the Amendment and Restatement Effective Date or (ii) in the case of a Canadian Subsidiary, the Canadian Effective Date (in each case, with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such (including, without limitation, upon the formation of any Subsidiary that is a Subsidiary Loan PartyDelaware Divided LLC), within 15 five Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall agree)acquired, notify the Collateral Agent and the Lenders thereof and, within twenty (20) 20 Business Days after the date such Subsidiary is formed or acquired 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 reasonable discretion, as applicable)agree, 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 to clause paragraph (g) below.
(e) If any additional Foreign Subsidiary (other than, from and after the Canadian Effective Date, a Canadian Subsidiary) of the Borrowers Company is formed or acquired after the Third Restatement 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 “first tier” Foreign Subsidiary of a Loan PartySubsidiary, within 15 five 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)acquired, notify the Collateral Agent and the Lenders thereof and, within 50 20 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 paragraph (g) below.
(i) Furnish to the Collateral 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 numberjurisdiction of organization, (D) in any Canadian Loan Party’s jurisdiction registered office or location of organization its chief executive office or (E) in the location of jurisdiction in Canada or the chief executive office of United States in which any Canadian Loan Party that is not a registered organizationmaintains tangible Collateral; provided, that the Borrowers Loan Parties 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 reasonable discretion)any statutory period, under the Uniform Commercial Code or PPSA or 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 and Lien in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties and (ii) promptly notify the Collateral Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) 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 $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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 Third 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 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 any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global 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 statements and other documents) documents and recordings of Liens in stock registries), that may be required under any applicable law, or that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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) If any asset (other than Real Property) that has an individual fair market value (as determined in good faith by the Borrowers) in an amount greater than $10,000,000 5 million is acquired by the Borrowers Company or any Subsidiary other Loan Party (other than the UK Borrower) after the Third Restatement Effective Closing Date or owned by an entity at the time it becomes a Subsidiary Loan Party (other than the UK Borrower) (including, without limitation, any acquisition pursuant to a Delaware LLC Division) (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 and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents), will ) (i) notify the Collateral Agent of such acquisition or ownership thereof and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the applicable Obligations and take, and cause the Subsidiary other Loan Parties (other than the UK Borrower) to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in clause paragraph (a) of this Section 5.10Section, all at the expense of the such Loan Parties, subject to clause paragraph (g) below.
(ic) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests in, and mortgages on, any Material Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not Mortgaged Property as of the Third Restatement Effective Date, to the extent acquired after the Third 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 documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation thereof, (ii) record or file, and cause each such Subsidiary to record or 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 to pay, in full, all Taxes, fees and other charges required to be paid in connection with such recording or filing, in each case subject to 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[reserved].
(d) If any additional direct or indirect Domestic Subsidiary or Canadian Subsidiary of the Borrowers Company is formed or acquired after after, the Third Amendment and Restatement Effective Date (in each case, with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such (including, without limitation, upon the formation of any Subsidiary that is a Subsidiary Loan PartyDelaware Divided LLC), within 15 five Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall agree)acquired, notify the Collateral Agent and the Lenders thereof and, within twenty (20) 20 Business Days after the date such Subsidiary is formed or acquired 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 reasonable discretion, as applicable)agree, 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 to clause paragraph (g) below.
(e) If any additional Foreign Subsidiary (other than a Canadian Subsidiary) of the Borrowers Company is formed or acquired after the Third Restatement 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 “first tier” Foreign Subsidiary of a Loan PartySubsidiary, within 15 five 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)acquired, notify the Collateral Agent and the Lenders thereof and, within 50 20 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 PartyParty (other than the UK Borrower), subject to clause paragraph (g) below.
(i) Furnish to the Collateral Agent prompt written notice of any change (A) in any Loan Party’s (other than the UK Borrower) corporate or organization name, (B) in any Loan Party’s (other than the UK Borrower) identity or organizational structure, (C) in any Loan Party’s organizational identification number(other than the UK Borrower) jurisdiction of organization, (D) in any Canadian Loan Party’s jurisdiction registered office or location of organization its chief executive office or (E) in the location of jurisdiction in Canada or the chief executive office of United States in which any Canadian Loan Party that is not a registered organizationmaintains tangible Collateral; provided, that the Borrowers Loan Parties (other than the UK 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 reasonable discretion)any statutory period, under the Uniform Commercial Code or PPSA or 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 and Lien in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties and (ii) promptly notify the Collateral Administrative Agent if any material portion of the Collateral is damaged or destroyed.
(g) 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 $10,000,000 Property, (ii) any vehiclevehicle (unless same may be satisfied by the filing of a PPSA financing statement), (iii) except as required pursuant to Section 5.14, cash, deposit account and security accounts (provided that this clause (iii) shall not affect the Collateral Agent’s right to claim a security interest and securities accountsLien in proceeds of Accounts, Inventory or any other Collateral), (iv) any Equity Interests acquired after the Third Restatement Effective Closing Date (other than Equity Interests in the Borrowers Company and the Canadian 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) such Equity Interests constitute less than 100% of all applicable Equity Interests of such person and the person holding the remainder of such Equity Interests are not Affiliates, (B) doing so would violate applicable law or a contractual obligation binding on such Equity Interests and (BC) with respect to such 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 subsidiarySubsidiary, (v) any assets acquired after the Third Restatement Effective 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) or Section 6.01(r) (if of the type permitted by Section 6.01(i)) that is secured by a Permitted Lien)) or (vi) those assets as to which the Collateral Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided, that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers Company 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 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 any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
Appears in 1 contract
Sources: Revolving Credit Agreement (Berry Global 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) documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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 PropertyProperty which is covered by paragraph (c) that has an individual fair market value (as determined in good faith by the Borrowersbelow) in an amount greater than $10,000,000 is acquired by the Borrowers Holdings, Dutch Borrower, Co-Borrower or any Subsidiary Loan Party after the Third Restatement 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 and (y) or assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) the Security Documents or the Security DocumentsCollateral 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 grant and perfect such LiensLien 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 5.105.11, all at the expense of the Loan Parties, subject to clause (g) belowthe final paragraph of this Section 5.11.
(ic) Grant Promptly notify the Administrative Agent of the acquisition after the 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 each of the Subsidiary applicable Loan Parties to grant to the Collateral Agent security interests in, in and mortgages on, any Material on such Owned Real Property of the Borrowers or such Subsidiary Loan Parties, as applicable, that are not Mortgaged Property as of 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 Third Restatement Effective Date, Obligations is not permitted or (ii) are not required to become subject to the extent acquired after the Third Restatement Effective Date, within 90 days after such acquisition (or such later date as Liens of the Collateral Agent may agree in its reasonable discretion) pursuant to documentation substantially in Section 5.11(g) or the form of Security Documents). Any Mortgage delivered granted pursuant to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage this Section shall constitute a valid and enforceable Liens first-priority Lien, subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation perfection thereof, (ii) record or file. Parent shall, 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 required to be paid payable in connection with such recording or filingtherewith, in each case subject to clause paragraph (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) If Other than in the case of any Excluded Subsidiary, if (i) any additional direct or indirect Subsidiary of the Borrowers Dutch Borrower is formed or acquired after the Third Restatement 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), 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 shall agreemay agree in its sole discretion), notify the Collateral Agent thereof and, within twenty (20) 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 reasonable sole 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 clause paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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[Reserved.]
(if) 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 numbernumber (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 that is not a registered (to the extent relevant in the applicable jurisdiction of 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 reasonable sole discretion), under the Uniform Commercial Code 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 and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyedParties.
(g) The 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 other provisions Security Documents shall be subject to exceptions and limitations set forth in the Security Documents.
(h) 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 this Section 5.10 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 other Loan Documents with respect to Collateral need not be satisfied with respect to (i) any Real Property held the taking of such actions are qualified by the Borrowers non-completion of such actions until such time as they are completed or any of their Subsidiaries as a lessee under a lease or that has an individual fair market value in an amount less than $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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) required to be completed 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 Third 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(i5.11(h)) 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 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 any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
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) ), that may be required under any applicable law, or that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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) If any asset (including any owned Real Property (other than owned Real PropertyProperty 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 Borrowers) in an amount greater than $10,000,000 1.0 million is acquired by the Borrowers Borrower or any Subsidiary other Loan Party after the Third Restatement 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 thereof, and (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g5.10(e) or the Security Documents), will (i) notify the Collateral Agent thereof, (ii) if such asset is comprised of Real Property, deliver to Collateral Agent an updated Schedule 1.01A reflecting the addition of such acquisition or ownership asset, and (iiiii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Loan Obligations and take, and cause the Subsidiary Loan Parties to take, take such actions as shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in clause paragraph (a) of this Section 5.10, all at the expense of the Loan PartiesBorrower, subject to clause paragraph (ge) below.
(ic) Grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests in, and mortgages on, any Material in such owned Real Property of the Borrowers or such Subsidiary Loan Parties, Borrower as applicable, that are not Mortgaged Property as of covered by the Third Restatement Effective Dateoriginal Mortgages, to the extent acquired after the Third Restatement Effective Date, within 90 days after such Date and having a fair market value (as determined by the Borrower in good faith) at the time of acquisition (or such later date as the Collateral Agent may agree in its reasonable discretion) excess of $1.0 million pursuant to documentation substantially in the form of Mortgage the Mortgages delivered to the Collateral Agent on or prior to the Third Restatement Effective Closing Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest ) and mortgage shall constitute constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of lawLiens, at the time of recordation perfection thereof, (ii) record or file, and cause each such Subsidiary 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 to pay, pay in full, all Taxes, fees and other charges required to be paid payable in connection with such recording or filing, in each case subject to clause (g) below, therewith and (iii) deliver to the Collateral Agent an updated Schedule 1.01(B) 1.01A reflecting such additional Mortgaged Properties, in each case subject to paragraph (e) below. Unless otherwise waived by the Collateral AgentAgent in its sole discretion, with respect to each such Additional Mortgage, the Borrowers Borrower shall cause deliver to the Collateral Agent contemporaneously therewith the other requirements set forth in clauses paragraphs (e), (f) and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Property.
(d) If any additional direct or indirect Subsidiary of the Borrowers is formed or acquired after the Third 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, within 15 Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall 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 (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 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 to clause (g) below.
(e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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.
(i) Furnish to the Collateral 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, number or (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, provided that the Borrowers 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 reasonable discretion)any statutory period, under the Uniform Commercial Code or 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 Parties and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(ge) The Collateral and Guarantee Requirement Requirement, and the other provisions of this Section 5.10 and the other Loan Documents with respect to Collateral 5.10, 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 $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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, (vii) any assets acquired after the Third Restatement Effective Closing Date, to the extent that, and for so long as, taking such actions would violate applicable law or 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 of the type permitted pursuant to Section 6.01(i) or Section 6.01(r) (if of the type permitted by Section 6.01(i)6.01(f) that is secured by a Permitted Lien)) or (iii) those assets as to which the Administrative Agent shall reasonably determine that the costs of obtaining or perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby; provided, provided that, upon the reasonable request of the Collateral Agent, Holdings and the Borrowers shall, and Borrower shall cause any applicable Subsidiary to, use commercially reasonable efforts to have waived or eliminated any contractual obligation of the types described in clauses clause (iv) and (vii) above. Notwithstanding anything to the contrary in this Agreement, the Security Documents, or any other Loan Document, (vii) any Subsidiary the Administrative Agent may grant extensions of time for the requirements of creating or asset perfecting security interests in or the obtaining of title insurance, legal opinions, appraisals, flood insurance and 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 Borrower, that perfection or obtaining of such items cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required by this Agreement or the other Loan Documents, (ii) Liens required to be granted from time to time pursuant to this Agreement and the Security Documents shall be subject to exceptions and limitations set forth in the Security Documents and (iii) the Administrative Agent determines in its reasonable discretion that and the cost Borrower may make such modifications to the Mortgages, and execute and/or consent to such easements, covenants, rights of way or similar instruments (and Administrative Agent may agree to subordinate the satisfaction of the Collateral and Guarantee Requirement or the provisions of this Section 5.10 or Lien of any Security Document with respect thereto (includingMortgage to any such easement, without limitationcovenant, delivery right of Foreign Pledge Agreements) is excessive way or similar instrument of record or may agree to recognize any tenant pursuant to an agreement in relation a form and substance reasonably acceptable to the value of the security afforded thereby. Notwithstanding anything herein to the contraryAdministrative Agent), to the extent any Mortgaged Property is located in a jurisdiction with mortgage recording as are reasonable or similar tax, the amount secured necessary and otherwise permitted 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 this Agreement and the Collateral Agent (subject to any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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)Documents.
(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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
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) 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 (includingrequest, 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 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.
(b) If any asset (including any real property (other than Real Propertyreal property covered by Section 5.11(c) below) or improvements thereto or any interest therein) that has an individual fair market value (as determined in good faith by the Borrowers) Fair Market Value in an amount amount, or if purchase price therefor is, greater than $10,000,000 2,500,000 is acquired by Holdings, the Borrowers Borrower or any Subsidiary other Loan Party after the Third Restatement 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 and (y) other than assets that (i) are subject to 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 in favor of the Collateral Administrative Agent pursuant to Section 5.10(g5.11(g) or the Security Documents), will (i) notify the Collateral Agent of such acquisition or ownership and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations pursuant to appropriate Security Documents and take, and cause the Subsidiary Loan Parties to take, such actions as shall be necessary or reasonably requested by the Collateral Administrative Agent to grant and perfect such Liens, including actions described in clause paragraph (a) of this Section 5.105.11, all at the expense of the Loan Parties, subject to clause paragraph (g) below.
(ic) Grant Promptly notify the Administrative Agent of the acquisition of, and, upon the written request of the Administrative Agent, grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Administrative Agent security interests and mortgages in, and mortgages on, any Material Real Property such real property of the Borrowers Borrower or any such Subsidiary Loan Parties, Parties as applicable, that are not Mortgaged Property as covered by 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 Table of Contents the Third Restatement Effective DateAdministrative Agent pursuant to Section 5.11(g) or the Security Documents), to the extent acquired after the Third Restatement Effective Date, within 90 days after such Closing Date and having a value or purchase price at the time of acquisition (or such later date as the Collateral Agent may agree in its reasonable discretion) excess of $2,500,000 pursuant to documentation substantially in the form of Mortgage delivered to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Administrative Agent (each, an “Additional Mortgage”), which security interest ) and mortgage shall constitute constituting valid and enforceable 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 or Liens arising by operation of law, at the time of recordation perfection thereof, (ii) record or file, and cause each such Subsidiary to record or 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 Administrative Agent (for the benefit of the Secured Parties) required to be granted pursuant to the Additional Mortgages and pay, and cause each such Subsidiary to pay, in full, all Taxes, fees and other charges required to be paid payable in connection with such recording or filingtherewith, in each case subject to clause paragraph (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 With respect to each such Additional Mortgage, the Borrowers Borrower shall deliver, or cause the requirements set forth in clauses (f) applicable Subsidiary Loan Party to deliver, to the Administrative Agent contemporaneously therewith a title insurance policy or policies or marked up unconditional binder of title insurance, 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 expressly permitted by Section 6.02 and (g) Liens arising by operation of law, together with such endorsements, coinsurance and reinsurance as the definition of “Collateral Administrative Agent may reasonably request and Guarantee Requirement” to be satisfied a survey if reasonably available with respect to such Material Real Propertyproperty outside the United States.
(d) If In connection with (i) the formation or acquisition of any additional direct or indirect Domestic Subsidiary of Holdings or the Borrowers is formed Borrower or acquired after any direct Foreign Subsidiary of any Loan Party or (ii) any existing direct or indirect subsidiary of Holdings or the Third Restatement Effective Date (with any Subsidiary Redesignation resulting in an Unrestricted Subsidiary Borrower becoming a Subsidiary being deemed to constitute the acquisition of a Subsidiary) and if such Subsidiary is a Subsidiary Loan Party, within 15 ten Business Days after the date of such formation, acquisition or Subsidiary is formed or acquired (becoming a Subsidiary Loan Party, notify the Administrative Agent and the Lenders thereof and, within 20 Business Days after such date or such longer period as the Collateral Agent shall 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 (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 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 to clause (g) below.
(e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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 Administrative Agent shall agree, 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 Foreign Subsidiary subsidiary owned by or on behalf of any Loan Party, subject to clause (g) below.
(i) Furnish to the Collateral 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, (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party 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 reasonable discretion), under the Uniform Commercial 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 and (ii) promptly notify the Collateral Agent if any material portion of the Collateral is damaged or destroyed.
(g) 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 $10,000,000 (ii) any vehicle, (iii) cash, deposit accounts and securities accounts, (iv) any Equity Interests acquired after the Third 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 Third 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 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 any applicable laws in the relevant jurisdiction).
(h) 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 or other foreign person that is organized under the laws of Germany or The Netherlands 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.5.11
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) documents and recordings of Liens in stock registries), that the Collateral Agent may reasonably request (including, without limitation, those required by applicable law)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 Borrower) that it is a requirement of applicable law to have appraisals prepared in respect of the Mortgaged Property of any Loan Party that is located in the United States, the 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 PropertyProperty which is covered by paragraph (c) below) that has an individual fair market value (as determined in good faith by the BorrowersBorrower) in an amount greater than $10,000,000 5.0 million is acquired by Holdings, the Borrowers Borrower or any Subsidiary Loan Party after the Third Restatement 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 and thereof, or (y) assets that are not required to become subject to Liens in favor of the Collateral Agent pursuant to Section 5.10(g) or the Security Documents), ) will (i) promptly as practicable (and in any event within 60 days of their acquisition) notify the Collateral Agent of such acquisition or ownership thereof and (ii) cause such asset to be subjected to a Lien (subject to any Permitted Liens) securing the Obligations and take, and take or cause the Subsidiary Loan Parties to take, take such actions as shall be reasonably requested by the Collateral Agent to grant and perfect such Liens, including actions described in clause paragraph (a) of this Section 5.10, all at the expense of the Loan Parties, subject to clause paragraph (g) below.
(ic) Grant Promptly notify the Administrative Agent of the acquisition (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) of and within 60 days after such acquisition will grant and cause each of the Subsidiary Loan Parties to grant to the Collateral Agent security interests in, and mortgages on, any Material in such Owned Real Property of the Borrowers Borrower or any such Subsidiary Loan Parties, Parties as applicable, that are not Mortgaged Property as covered by any then-existing 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 Third Restatement Effective DateCollateral Agent pursuant to Section 5.10(g) or the Security Documents), to the extent acquired after the Third Restatement Effective DateClosing Date and having a value or purchase price at the time of acquisition in excess of $10 million, within 90 days after such acquisition (or such later date as the Collateral Agent may agree in its reasonable discretion) pursuant to documentation substantially in the form of a Mortgage delivered to the Collateral Agent on or prior to the Third Restatement Effective Date or in such other form as is reasonably satisfactory to the Collateral Agent (each, an “Additional Mortgage”), which security interest and mortgage shall constitute constituting valid and enforceable Liens subject to no other Liens except Permitted Liens or Liens arising by operation of law, at the time of recordation perfection thereof, (ii) record or file, and cause each such Subsidiary Loan Party to record or 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 required to be paid payable in connection with such recording or filingtherewith, in each case subject to clause paragraph (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 Borrower shall cause comply with the requirements set forth in clauses (f) Collateral Requirements applicable to Mortgages and (g) of the definition of “Collateral and Guarantee Requirement” to be satisfied with respect to such Material Real Mortgaged Property.
(d) If any additional direct or indirect Subsidiary of the Borrowers Borrower is formed or acquired after the Third Restatement 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 Subsidiary Loan Partythat is a Domestic Subsidiary or is a Subsidiary acquired pursuant to a Permitted Business Acquisition (in each case, other than, at the Borrower’s option, any Immaterial Subsidiary or any Excluded Subsidiary), within 15 ten (10) Business Days after the date such Subsidiary is formed or acquired (or such longer period as the Collateral Agent shall agree)acquired, notify the Collateral Agent thereof and, within twenty sixty (2060) Business Days days after the date such Subsidiary is formed or acquired 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 reasonable discretion, as applicable)agree, 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 clause paragraph (g) below.
(e) If any additional Foreign Subsidiary of the Borrowers is formed or acquired after the Third 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[Reserved].
(if) Furnish to the Collateral Agent prompt promptly (and in any event within 30 days after such change) 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, or (D) in any Loan Party’s jurisdiction of organization or (E) in the location of the chief executive office of any Loan Party that is not a registered organization; provided, that the Borrowers 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 reasonable discretion)any statutory period, under the Uniform Commercial Code or 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 Parties and (ii) promptly notify with the Collateral Agent if any material portion of the Collateral is damaged or destroyedsame priority as prior to such change.
(g) 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 (i) any Real Property held by the Borrowers Borrower or any of their its Subsidiaries as a lessee under a lease or any Real Property owned in fee that has an individual fair market value in an amount less than $10,000,000 is not Owned Real Property, (ii) any vehiclevehicle subject to a certificate of title, (iii) cash, deposit accounts and securities accounts (it being understood and agreed that (1) the Lien of the Collateral Agent may extend to such assets pursuant to the terms of the Collateral Agreement, but that such Lien need not be perfected to the extent perfection requires any action other than the filing of customary financing statements (and all representations, warranties, covenants and other terms of the Loan Documents with respect to Collateral shall be construed accordingly), (2) there shall be no lockbox arrangements nor any control agreements relating to the Borrower’s and its subsidiaries’ bank accounts) and (3) this exclusion shall not affect the grant of the security interest under any of the Security Documents in proceeds of Collateral as set forth therein and all proceeds of Collateral shall be Collateral, (iv) any Equity Interests owned on or acquired after the Third Restatement Effective Closing Date (other than than, in the case of shareholder agreements or other contractual obligations, (x) Equity Interests in the Borrowers or, Borrower or (y) in the case of any person which is a Wholly-Owned Subsidiary, Equity Interests in such person issued or acquired after such person became a Subsidiaryperson) in accordance with this Agreement if, and to the extent that, and for so long as (A) doing so would violate applicable law or regulation or a shareholder agreement or other contractual obligation (in each case, after giving effect to Section 9-406(d), 9-407(a), 9-408 or 9-409 of the Uniform Commercial Code in effect in the State of New York and other applicable law or similar provisions in similar codes, statutes or laws in other jurisdictions (the “Anti-Non-Assignment Clauses”)) 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 subsidiaryInterests, (v) any assets acquired after the Third Restatement Effective Date, to the extent that, and for so long as, taking such actions would violate applicable law or regulation or, in the case of assets acquired after the Closing Date, 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 after the Closing Date with Indebtedness of the type 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) permitted by this Agreement, thatin each case, upon after giving effect to the reasonable request of the Collateral AgentAnti-Non-Assignment Clauses, 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 lease, license or asset with respect other agreement or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money arrangement or create a right of termination in favor of any other party thereto (other than the Borrower or a Subsidiary), after giving effect to the Anti-Non-Assignment Clauses, other than proceeds and receivables thereof or (vii) those assets as to which the Borrower and the Administrative Agent determines shall reasonably determine in its reasonable discretion writing that the cost costs of the satisfaction of the Collateral and Guarantee Requirement obtaining or the provisions of this Section 5.10 or of any Security Document with respect thereto (including, without limitation, delivery of Foreign Pledge Agreements) is perfecting such a security interest are excessive in relation to the value of the security to be afforded thereby. Notwithstanding anything herein to the contrary, to the extent any Mortgaged Property is located contrary in a jurisdiction with mortgage recording or similar taxthis Agreement, the amount secured by Collateral Agreement, or any other Loan Document, (i) the Security Document Administrative Agent may grant extensions of time and/or waive the 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 Mortgaged Property date) where it reasonably determines, in consultation with the Borrower, 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 Requirement and the Security Documents shall be limited to the fair market value of such Mortgaged Property as reasonably agreed by Holdings and the Collateral Agent (subject to any applicable laws exceptions and limitations set forth in the relevant jurisdiction)Security Documents.
(h) Upon The Borrower shall or shall cause the applicable Subsidiary Loan Party to take such actions set forth on Schedule 5.10(h) within the timeframes set forth for the taking of such actions on Schedule 5.10(h) (or within such longer timeframes as the Administrative Agent shall permit in its reasonable request discretion) (in each caseit being understood and agreed that all representations, taking into account warranties and covenants of the relative costs (Loan Documents with respect to the Loan Parties) and benefits (to the Secured Parties)) taking 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 or other foreign person that is organized under the laws of Germany or The Netherlands owned by Borrowers or a Domestic Subsidiary, in each case to the extent such actions are permitted qualified by the non-completion of such actions until such time as they are completed or required 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 completed in accordance 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.
(j) Complete each of the actions described in any Incremental Assumption Agreement establishing a Euro Incremental Facility as soon as commercially reasonable and by no later than the dates set forth therein. For purposes of clarification, in connection with the implementation of any Euro Incremental Facility, the guarantees or security interests (if any) provided by Foreign Subsidiaries to secure such Euro Incremental Facility shall not be required to also secure any Facility borrowed by the Borrowers.
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