Common use of Post-Closing Collateral Clause in Contracts

Post-Closing Collateral. The Borrower shall have satisfied, and shall have caused each Loan Party to have satisfied, the Term Loan Priority Collateral Requirements on or prior to (x) the date that is 90 days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Real Estate Collateral Properties and Related Real Estate Collateral located thereon, and (y) within 120 days after the Closing (or such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Related Real Estate Collateral located at Material Related Collateral Locations. After the Closing Date, the Borrower may substitute one or more fee-owned or ground leasehold interests in Real Estate (and the Equipment located thereon) for any Term Loan Priority Collateral on the Applicable Collateral List subject to the satisfaction of the terms and conditions set forth in Section 9.21, but provided that any such substitution prior to the completion of the requirements of the previous sentence shall not affect the amount of time permitted for taking any action required under this Section 5.25. In addition to the foregoing, Loan Parties shall deliver or cause to be delivered to the Administrative Agent on or before May 21, 2013 (unless the Administrative Agent, in its sole discretion, shall have agreed to any longer period), a lender’s loss payable endorsement for each of the property insurance policies (including Marine insurance policies insuring inventory) required to be maintained pursuant to Section 5.07, each in form and substance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as a loss payee and additional insured. Such endorsements shall, or the insurer shall otherwise agree in writing, to make the Administrative Agent a payee on any payment of a claim under such policies and provide for delivery of such payment directly to the ABL Facility Agent (subject to the rights of the Administrative Agent with respect to Term Loan Priority Collateral).

Post-Closing Collateral. The Borrower shall have satisfiedBorrowers shall, and shall have caused cause each Loan Party to have satisfiedother Obligor to, as promptly as reasonably practicable, but in no event later than the Term Loan Priority Collateral Requirements on or prior to (x) the date that is 90 number of days after the Closing Date (or applicable to each clause set forth below as any such later date as period may be agreed extended by the Administrative Collateral Agent in its sole discretion) with respect (such extensions not to Term Loan Priority be unreasonably withheld, delayed or conditioned), provide the items or perform the actions listed below (the assets subject to the below requirements, collectively, the “Post-Closing Collateral” and the time periods relating thereto, the “Post-Closing Collateral consisting of Real Estate Collateral Properties and Related Real Estate Collateral located thereon, and Period”): (ya) within 120 90 days after the Closing (or such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Related Real Estate Collateral located at Material Related Collateral Locations. After following the Closing Date, the Borrower may substitute one or more fee-Obligors shall, with respect to the owned or ground leasehold interests in Real Estate (and the Equipment located thereon) for any Term Loan Priority Collateral on the Applicable Collateral List subject to the satisfaction of the terms and conditions set forth in Section 9.21on Schedule 1.1(C) (other than such Real Estate that becomes the Agent Excluded Real Property, but provided that any such substitution prior to the completion of the requirements of the previous sentence shall not affect the amount of time permitted for taking any action required under this Section 5.25. In addition to the foregoing"Closing Date Mortgaged Real Property"), Loan Parties shall (i) execute, deliver or cause to be delivered and record to the Administrative Agent on or before May 21, 2013 (unless a Mortgage sufficient to create a perfected Lien in favor of the Administrative Agent, (ii) deliver to the Administrative Agent a customary opinion of local counsel in its sole discretionthe state in which such Closing Date Mortgaged Real Property is located as to such Mortgage, shall have (iii) at least 15 days prior to the effective date of the applicable Mortgage (or such shorter period as agreed to any longer periodby the Collateral Agent), a lender’s loss payable endorsement for the Collateral Agent and each of the property insurance policies applicable Lender shall receive (including Marine insurance policies insuring inventory) required to be maintained pursuant to Section 5.07, each in form and substance reasonably satisfactory to the Administrative Agent Collateral Agent), flood hazard information requested by any Lender as needed for a life-of-loan flood hazard determination and, if the Real Estate is located in a special flood hazard zone, flood insurance documentation (including an acknowledged notice to borrower and naming real property and contents flood insurance by an insurer reasonably acceptable to Collateral Agent) in accordance with the Flood Disaster Protection Act or otherwise reasonably satisfactory to each Lender and other such documents as the Administrative Agent or any Lender may reasonably require; (iv) deliver to the Administrative Agent any existing documents, instruments or agreements as a loss payee the Administrative Agent may reasonably request with respect to any environmental risks regarding such Real Estate (which, as long as Term Loans are outstanding, shall be satisfied by the delivery to the Administrative Agent of the existing documents, instruments or agreements requested by the Term Loan Agent); (v) upon request, deliver to the Administrative Agent any existing survey of such Closing Date Mortgaged Real Property (which, as long as Term Loans are outstanding, shall be satisfied by the delivery to the Administrative Agent of the existing surveys requested by the Term Loan Agent); and additional insured. Such endorsements shall(vi) (A) upon the reasonable request of the Administrative Agent, or the insurer shall otherwise agree in writing, deliver to make the Administrative Agent a payee title report for all Closing Date Mortgaged Real Property with an estimated emergence net book value between $175,000 and $400,000 as set forth on any payment Schedule 1.1(C), and (B) deliver to the Administrative Agent a mortgagee title policy (or “marked” title commitment therefor) for all Closing Date Mortgaged Real Property with an estimated emergence net book value in excess of $400,000 as set forth on Schedule 1.1(C), in form and substance reasonably acceptable to the Administrative Agent, having a claim under such policies and provide for delivery value not in excess of the fair market value of such payment directly Real Estate covering Administrative Agent’s interest under the Mortgage, by an insurer reasonably acceptable to the ABL Facility Administrative Agent (subject which must be fully paid on such effective date) (all of which deliveries under clause (v)(A) above will be satisfied by corresponding deliveries required by the Term Loan Agent under Section 7.3.3(a) of the Term Loan Credit Agreement; provided, that the Borrowers shall not be obligated to deliver any mortgage title policies to the rights extent doing so would require the Borrowers to obtain new surveys, zoning letters, appraisals, or environmental assessments of such Real Estate; (a) [reserved]; (b) within 90 days following the Closing Date the Obligors shall use commercially reasonable efforts to (i) transfer all leased Real Estate (other than the Borrower’s principal office) and all owned Real Estate not secured by a Mortgage (and in any event shall transfer owned Real Estate accounting for at least 90% of the aggregate net book value of all applicable Real Estate) to the SPV; provided that such commercially reasonable efforts shall not require the Obligors to pay consent or similar fees to counterparties to leases or other contracts in order to effect such transfers, and (ii) grant to the Administrative Agent a perfected security interest in the equity interests in the SPV; (c) the Obligors shall use commercially reasonable efforts to create a perfected Lien in favor of the Administrative Agent on each Vehicle that does not constitute Excluded Property that is not currently subject to a perfected security interest in favor of the Administrative Agent within 360 days following the Closing Date; (d) other than as provided in Sections 7.3.3(a) through (c), the Obligors shall not be required to provide any leasehold mortgages or any Related Real Estate Documents with respect to Term Loan Priority Collateralany Mortgaged Property; and (e) within 30 days of the Closing Date (or such longer period as Administrative Agent may agree in its reasonable discretion), the Obligors shall deliver a Securities Account Control Agreement with respect to Account no. xxxxxx01 maintained at ▇▇▇▇▇ Fargo Securities, LLC signed by ▇▇▇▇▇ Fargo Securities, LLC, in the form previously agreed to or such other form reasonably satisfactory to Administrative Agent.

Post-Closing Collateral. The Borrower shall have satisfied, and shall have caused each Loan Party to have satisfied, the Term Loan Priority Collateral Requirements on or prior to (xa) Within 90 days of the date that is 90 days after the Closing Date of this Indenture (or such later longer period as the Notes Collateral Agent may agree in its reasonable discretion), the Issuer and the Guarantors shall execute and deliver a first priority Mortgage (subject to Permitted Liens) in favor of the Notes Collateral Agent, for the benefit of the Holders, covering such Real Property subject to a Mortgage as of the date as may be agreed by hereof in favor of the Administrative Agent for the benefit of the Credit Agreement Secured Parties, in its sole discretionform for recording or filing in the recording or filing office of the applicable governmental subdivision where such Mortgaged Property is situated, together with evidence that all filing, documentary, stamp, intangible and mortgage recording taxes, fees, charges, costs and expenses have been paid by Issuer, (ii) with respect to Term Loan Priority Collateral consisting of Real Estate Collateral Properties and Related Real Estate Collateral located thereon, and (y) within 120 days after the Closing (or such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Related Real Estate Collateral located at Material Related Collateral Locations. After the Closing Date, the Borrower may substitute one or more fee-owned or ground leasehold interests in Real Estate (and the Equipment located thereon) for any Term Loan Priority Collateral on the Applicable Collateral List subject to the satisfaction of extent the terms and conditions set forth in Section 9.21, but provided that any such substitution prior to the completion of the requirements of the previous sentence shall not affect the amount of time permitted for taking any action required under this Section 5.25. In addition to the foregoing, Loan Parties shall deliver or cause to be same was previously delivered to the Administrative Agent on in connection with the Mortgaged Properties in accordance with the Credit Agreement provide the Notes Collateral Agent with (x) a mortgagee title and extended coverage insurance policy insuring the first priority Lien of the Mortgage upon such Real Property in an amount equal to the fair market value of such Real Property, together with (a) such endorsements as are reasonable and customary or before May 21otherwise as the Notes Collateral Agent shall reasonably request (including, 2013 (unless the Administrative Agent, in its sole discretion, shall have agreed to any longer period)without limitation, a lender’s loss payable tie-in or cluster endorsement for if available) and (b) evidence that all premiums in respect of such policy and all related expenses have been paid by Issuer, as well as a current or updated ALTA survey (or survey affidavit) thereof, certified to the Notes Collateral Agent and the applicable title insurance company , provided that such survey affidavit, if applicable, is sufficient to cause the title insurance company to issue such mortgagee title insurance policies without any standard survey exceptions and with customary survey related endorsements and (y) any consents or estoppels deemed necessary or advisable in connection with such Mortgage, each of the property insurance policies (including Marine insurance policies insuring inventory) required to be maintained pursuant to Section 5.07, each foregoing in form and substance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as a loss payee and additional insured. Such endorsements shall, or the insurer shall otherwise agree in writing, to make the Administrative Agent a payee on any payment of a claim under such policies and provide for delivery of such payment directly to the ABL Facility Notes Collateral Agent (subject provided, that the Issuer and the Guarantors shall only be required to the rights of the Administrative Agent deliver a Mortgage with respect to Term Loan Priority Collateralany real property leasehold interests upon receipt of any required landlord consent to such leasehold Mortgage after using commercially reasonable efforts to obtain such consent and to use commercially reasonable good faith efforts to obtain all such consents and estoppels; provided further nothing herein shall require the Issuer or the Guarantors to use commercially reasonably efforts to obtain any landlord consent to the extent that any such landlord consent was previously not obtained after use of commercially reasonable efforts), (iii) if requested by the Notes Collateral Agent, deliver to the Notes Collateral Agent legal opinions addressed to the Collateral Agent for the benefit of the Holders relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Notes Collateral Agent, (iv) deliver Flood Certificates with respect to any improved Mortgaged Property and (v) otherwise take such actions and execute and/or deliver to the Notes Collateral Agent such documents, agreements or instruments as the Notes Collateral Agent shall reasonably require to confirm the validity, perfection and priority of the Liens of any such Mortgage (including, without limitation, any financial data or indemnification instruments required by the title insurance company in connection with issuing a mortgagee title and extended coverage insurance policy as described above). (b) Within 90 days after the date of this Indenture, the Issuer and the Guarantors shall use commercially reasonable efforts to deliver control agreements duly executed by the Issuer or the applicable Guarantor, as applicable, and the applicable deposit bank, securities intermediary or commodities intermediary with respect to each deposit account, securities account and commodities account (in each case, other than an Excluded Account) owned or held by the Issuer and the Guarantors; provided that if at the end of such 90 day period the Issuer and the Guarantors have not delivered the applicable control agreements after their use of commercially reasonably efforts in accordance with this Section 4.18(b), such failure shall not constitute a Default or Event of Default so long as the First Lien Intercreditor Agreement or other intercreditor agreement or arrangement permitted hereunder is then in effect.

Post-Closing Collateral. The Borrower shall have satisfied, and shall have caused each Loan Party to have satisfied, the Term Loan Priority Collateral Requirements on or prior to (x) the date that is 90 days after the Closing Date (or such later date as may be agreed by the Administrative Agent in its sole discretion) ), the Fixed Asset Collateral Requirements with respect to Term Loan Priority the Fixed Asset Collateral consisting of Real Estate that is on the Applicable Collateral Properties and Related Real Estate Collateral located thereon, and (y) within 120 List on the date that is 90 days after the Closing Date (or with respect to the Fixed Asset Collateral that is on the Applicable Collateral List on such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Related Real Estate Collateral located at Material Related Collateral Locations). After the Closing Date, the Borrower may substitute one or more fee-owned or ground leasehold interests in Real Estate (and the Equipment located thereon) for any Term Loan Priority Fixed Asset Collateral on the Applicable Collateral List subject to the satisfaction of the terms and conditions set forth in Section 9.21, but provided that any such substitution prior to the completion of the requirements of the previous sentence shall not affect the amount of time permitted for taking any action required under this Section 5.25. In addition to the foregoing, Loan Parties shall use reasonable efforts to deliver or cause to be delivered to the Administrative Agent on or before May 21September 15, 2013 (unless the Administrative Agent, in its sole discretion, shall have agreed to any longer period)2012, a lender’s loss payable endorsement for each of the property insurance policies maintained by the Loan Parties with the following insurance providers (including Marine insurance policies insuring inventorycollectively, the “Specified Property Policies”): (i) required to be maintained pursuant to Section 5.07Lloyds of London, (ii) Chubb Custom Insurance Company (▇▇ ▇▇▇▇▇ & Co), (iii) Arch Specialty Insurance Co., (iv) Liberty Mutual Fire Insurance Company, (v) ACE American Insurance Company, (vi) Ironshore Insurance Ltd—Bermuda, (vii) American Guarantee and Liability (Zurich), (viii) Aspen Insurance UK Ltd, (ix) Houston Casualty, (x) Allied World Assurance Company, (xi) Axis Specialty Insurance—Bermuda, (xii) Lexington (Chartis), (xiii) Westport Insurance Company (Swiss Re), (xiv) Hartford Steam Boiler Inspection and Insurance Co. (Munich Re), (xv) Zurich American Insurance Company and (xvi) Factory Mutual Insurance Company, each in form and substance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as a loss payee and additional insured. Such endorsements shall, or the insurer shall otherwise agree in writing, to make the Administrative Agent a payee on any payment of a claim under such policies and provide for delivery of such payment directly to the ABL Facility Agent (subject to the rights of the Administrative Agent with respect to Term Loan Priority Collateral). Loan Parties shall deliver or cause to be delivered to the Administrative Agent all such lender’s loss payable endorsements on or before September 30, 2012 (unless the Administrative Agent, in its sole discretion, shall have agreed to any longer period).

Post-Closing Collateral. The Borrower shall have satisfiedBorrowers shall, and shall have caused cause each Loan Party to have satisfiedother Obligor to, as promptly as reasonably practicable, but in no event later than the Term Loan Priority Collateral Requirements on or prior to (x) the date that is 90 number of days after the Closing Date (or applicable to each clause set forth below as any such later date as period may be agreed extended by the Administrative Agent in its sole discretion) with respect Co-Collateral Agents (such extensions not to Term Loan Priority be unreasonably withheld, delayed or conditioned), provide the items or perform the actions listed below (the assets subject to the below requirements, collectively, the “Post-Closing Collateral” and the time periods relating thereto, the “Post-Closing Collateral consisting of Real Estate Collateral Properties and Related Real Estate Collateral located thereon, and Period”): (ya) within 120 90 days after the Closing (or such later date as may be agreed by the Administrative Agent in its sole discretion) with respect to Term Loan Priority Collateral consisting of Related Real Estate Collateral located at Material Related Collateral Locations. After following the Closing Date, the Borrower may substitute one or more fee-Obligors shall, with respect to the owned or ground leasehold interests in Real Estate (and the Equipment located thereon) for any Term Loan Priority Collateral on the Applicable Collateral List subject to the satisfaction of the terms and conditions set forth in Section 9.21on Schedule 1.1(C) (other than such Real Estate that becomes the Agent Excluded Real Property, but provided that any such substitution prior to the completion of the requirements of the previous sentence shall not affect the amount of time permitted for taking any action required under this Section 5.25. In addition to the foregoing“Closing Date Mortgaged Real Property”), Loan Parties shall (i) execute, deliver or cause to be delivered and record to the Administrative Agent on or before May 21, 2013 (unless a Mortgage sufficient to create a perfected Lien in favor of the Administrative Agent, (ii) deliver to the Administrative Agent a customary opinion of local counsel in its sole discretionthe state in which such Closing Date Mortgaged Real Property is located as to such Mortgage, shall have (iii) at least 15 days prior to the effective date of the applicable Mortgage (or such shorter period as agreed to any longer periodby the Co-Collateral Agents), a lender’s loss payable endorsement for the Co-Collateral Agents and each of the property insurance policies applicable Lender shall receive (including Marine insurance policies insuring inventory) required to be maintained pursuant to Section 5.07, each in form and substance reasonably satisfactory to the Administrative Agent Co-Collateral Agents), flood hazard information requested by any Lender as needed for a life-of-loan flood hazard determination and, if the Real Estate is located in a special flood hazard zone, flood insurance documentation (including an acknowledged notice to borrower and naming real property and contents flood insurance by an insurer reasonably acceptable to Co-Collateral Agents) in accordance with the Flood Disaster Protection Act or otherwise reasonably satisfactory to each Lender and other such documents as the Administrative Agent or any Lender may reasonably require; (iv) deliver to the Administrative Agent any existing documents, instruments or agreements as a loss payee the Administrative Agent may reasonably request with respect to any environmental risks regarding such Real Estate (which, as long as Term Loans are outstanding, shall be satisfied by the delivery to the Administrative Agent of the existing documents, instruments or agreements requested by the Term Loan Agent); (v) upon request, deliver to the Administrative Agent any existing survey of such Closing Date Mortgaged Real Property (which, as long as Term Loans are outstanding, shall be satisfied by the delivery to the Administrative Agent of the existing surveys requested by the Term Loan Agent); and additional insured. Such endorsements shall(vi) (A) upon the reasonable request of the Administrative Agent, or the insurer shall otherwise agree in writing, deliver to make the Administrative Agent a payee title report for all Closing Date Mortgaged Real Property with an estimated emergence net book value between $175,000 and $400,000 as set forth on any payment Schedule 1.1(C), and (B) deliver to the Administrative Agent a mortgagee title policy (or “marked” title commitment therefor) for all Closing Date Mortgaged Real Property with an estimated emergence net book value in excess of $400,000 as set forth on Schedule 1.1(C), in form and substance reasonably acceptable to the Administrative Agent, having a claim under such policies and provide for delivery value not in excess of the fair market value of such payment directly Real Estate covering Administrative Agent’s interest under the Mortgage, by an insurer reasonably acceptable to the ABL Facility Administrative Agent (subject which must be fully paid on such effective date) (all of which deliveries under clause (v)(A) above will be satisfied by corresponding deliveries required by the Term Loan Agent under Section 7.3.3(a) of the Term Loan Credit Agreement; provided, that the Borrowers shall not be obligated to deliver any mortgage title policies to the rights extent doing so would require the Borrowers to obtain new surveys, zoning letters, appraisals, or environmental assessments of such Real Estate; (b) within 90 days following the Closing Date the Obligors shall use commercially reasonable efforts to (i) transfer all leased Real Estate (other than the Borrower’s principal office) and all owned Real Estate not secured by a Mortgage (and in any event shall transfer owned Real Estate accounting for at least 90% of the aggregate net book value of all applicable Real Estate) to the SPV; provided that such commercially reasonable efforts shall not require the Obligors to pay consent or similar fees to counterparties to leases or other contracts in order to effect such transfers, and (ii) grant to the Administrative Agent a perfected security interest in the equity interests in the SPV; (c) the Obligors shall use commercially reasonable efforts to create a perfected Lien in favor of the Administrative Agent on each Vehicle that does not constitute Excluded Property that is not currently subject to a perfected security interest in favor of the Administrative Agent within 360 days following the Closing Date; (d) other than as provided in Sections 7.3.3(a) through (c), the Obligors shall not be required to provide any leasehold mortgages or any Related Real Estate Documents with respect to Term Loan Priority Collateralany Mortgaged Property; and (e) within 30 days of the Closing Date (or such longer period as Administrative Agent may agree in its reasonable discretion), the Obligors shall deliver a Securities Account Control Agreement with respect to Account no. xxxxxx01 maintained at ▇▇▇▇▇ Fargo Securities, LLC signed by ▇▇▇▇▇ Fargo Securities, LLC, in the form previously agreed to or such other form reasonably satisfactory to Administrative Agent.