The Collateral. (a) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, shall be secured by Liens on and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, as provided in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property of the Company and the Guarantors owned on the Issue Date (other than Excluded Property) shall be pledged as Collateral pursuant to the Collateral Documents on the Issue Date, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, to the provisions of Section 11.05. (b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents. (c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith. (d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder. (e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted Liens), and subject to no other Liens (other than Permitted Liens), including (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateral, and (ii) the delivery of the certificates evidencing the securities pledged under any Collateral Document, duly endorsed in blank or accompanied by undated stock powers or other instruments of transfer executed in blank. The Company shall from time to time promptly pay all financing and continuation statement recording and/or filing fees, charges and recording and similar taxes relating to the Indenture, the Collateral Documents and any amendments hereto or thereto and any other instruments of further assurance required pursuant hereto or thereto.
Appears in 1 contract
Sources: Indenture (Cleveland-Cliffs Inc.)
The Collateral. The Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which Documents) of the Company U.S. Borrowers and the GuarantorsU.S. Subsidiaries which are Guarantors and, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property of the Company and the Guarantors owned on the Issue Date (other than Excluded Property) shall be pledged as Collateral pursuant to the Collateral Documents on the Issue Date, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers and the U.S. Subsidiaries which are Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit of and all proceeds of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted Liens), and subject to no other Liens (other than Permitted Liens), including (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers and the securities pledged Canadian Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the Canadian Borrowers, the U.S. Subsidiaries which are Guarantors, the U.K. Subsidiaries which are Guarantors and the Canadian Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the Canadian Borrowers, the U.S. Subsidiaries which are Guarantors, the U.K. Subsidiaries which are Guarantors and the Canadian Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect; (i) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures and (ii) no Guarantor, the fair market value of whose assets aggregate less than $1,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers binding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; and (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company, may be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only) or (m);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated foreign subsidiary;
(iv) no Liens need be granted on real property unless and until the Required Lenders so require;
(v) Liens granted may be subject and subordinate to Liens permitted by clauses (a), (b), (c), (e), (f), (g), (h), (j), (k), (n), and (o) of Section 7.11 hereof;
(vi) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on notes receivable having a fair value of less than $2,000,000 in any instance and continuation statement recording and/or $10,000,000 in the aggregate or on bonds or notes pledged to the City of New York in lieu of retainage;
(vii) Liens need not be perfected by possession or control (but may be perfected by the filing feesof a financing statement) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $1,000,000 in any instance and $5,000,000 in the aggregate;
(viii) no lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(ix) no lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(x) no lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(xi) Liens on payroll accounts maintained by the Borrowers and the Guarantors need not be perfected provided the total amount on deposit at any time does not exceed the then current amount of their payroll obligations. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents owned by the U.K. Subsidiaries and any amendments hereto or thereto the Canadian Subsidiaries and any other instruments Controlled Foreign Corporation (“CFC”) as such term is defined a Section 957 of further assurance required pursuant hereto the Code whose assets are included as part of the Collateral (including without limitation equity interests in other U.K. Subsidiaries and Canadian Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries, the Canadian Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary, Canadian Subsidiary and any other CFC owned by a U.S. Corporation and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of the Canadian Subsidiaries, U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or theretothe U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (Emcor Group Inc)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property ) of the Company and the Guarantors owned on the Issue Date U.S. Borrowers (other than Excluded PropertyEMCOR International Inc.) shall be pledged as Collateral pursuant to and the Collateral Documents on the Issue DateU.S. Subsidiaries which are Guarantors (other than EMCOR International Inc.) and, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit this Section 4.1, all capital stock of all of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons Guarantors (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted LiensEMCOR International Inc.), together with all instruments, securities, chattel paper and subject to no other Liens intangibles of the U.S. Borrowers (other than Permitted Liens), including EMCOR International Inc.) and the U.S. Subsidiaries which are Guarantors (iother than EMCOR International Inc.) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights all proceeds of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect: (x) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures, and (y) no Guarantor, the fair market value of whose assets aggregate less than $5,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company; and (i) other assets required by bonding companies to be collateral in connection with their issuance of payment and/or performance bonds, may in each case be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds, in each case to the extent such bonds are permitted hereunder;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only), (m) or (n);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated Foreign Subsidiary;
(iv) Liens granted shall be subject and may be subordinate to Liens permitted by Section 7.11 hereof;
(v) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on (A) notes receivable having a fair value of less than $5,000,000 in any instance and continuation statement recording and/or filing fees$40,000,000 in the aggregate, (B) bonds or notes pledged to the City of New York in lieu of retainage or (C) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $5,000,000 in any instance and $40,000,000 in the aggregate;
(vi) no Lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(vii) no Lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(viii) no Lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(ix) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries, EMCOR International Inc. and any other instruments CFC whose assets are included as part of further assurance required pursuant hereto the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary, EMCOR International Inc. and any other CFC owned by the Company or theretoa U.S. Subsidiary and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or the U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (EMCOR Group, Inc.)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property ) of the Company and the Guarantors owned on the Issue Date U.S. Borrowers (other than Excluded PropertyEMCOR International Inc.) shall be pledged as Collateral pursuant to and the Collateral Documents on the Issue DateU.S. Subsidiaries which are Guarantors (other than EMCOR International Inc.) and, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit this Section 4.1, all capital stock of all of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons Guarantors (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted LiensEMCOR International Inc.), together with all instruments, securities, chattel paper and subject to no other Liens intangibles of the U.S. Borrowers (other than Permitted Liens), including EMCOR International Inc.) and the U.S. Subsidiaries which are Guarantors (iother than EMCOR International Inc.) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights all proceeds of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect: (x) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures, and (y) no Guarantor, the fair market value of whose assets aggregate less than $5,000,000, shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company; and (i) other assets required by bonding companies to be collateral in connection with their issuance of payment and/or performance bonds, may in each case be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds, in each case to the extent such bonds are permitted hereunder;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only), (m) or (n);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated Foreign Subsidiary;
(iv) Liens granted shall be subject and may be subordinate to Liens permitted by Section 7.11 hereof;
(v) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on (A) notes receivable having a fair value of less than $5,000,000 in any instance and continuation statement recording and/or filing fees$40,000,000 in the aggregate, (B) bonds or notes pledged to the City of New York in lieu of retainage or (C) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $5,000,000 in any instance and $40,000,000 in the aggregate;
(vi) no Lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(vii) no Lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(viii) no Lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(ix) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries, EMCOR International Inc. and any other instruments CFC whose assets are included as part of further assurance required pursuant hereto the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary, EMCOR International Inc. and any other CFC owned by the Company or theretoa U.S. Subsidiary and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or the U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (EMCOR Group, Inc.)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which Documents) of the Company U.S. Borrowers and the GuarantorsU.S. Subsidiaries which are Guarantors and, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property of the Company and the Guarantors owned on the Issue Date (other than Excluded Property) shall be pledged as Collateral pursuant to the Collateral Documents on the Issue Date, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers and the U.S. Subsidiaries which are Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit of and all proceeds of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted Liens), and subject to no other Liens (other than Permitted Liens), including (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect; (i) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures and (ii) no Guarantor, the fair market value of whose assets aggregate less than $1,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; and (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company, may be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only) or (m);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated Foreign Subsidiary;
(iv) no Liens need be granted on real property unless and until the Required Lenders so require;
(v) Liens granted may be subject and subordinate to Liens permitted by Sections 7.11(a), (b), (c), (e), (f), (g), (h), (j), (k), and (n) hereof;
(vi) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on notes receivable having a fair value of less than $2,000,000 in any instance and continuation statement recording and/or $10,000,000 in the aggregate or on bonds or notes pledged to the City of New York in lieu of retainage;
(vii) Liens need not be perfected by possession or control (but may be perfected by the filing feesof a financing statement) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $2,000,000 in any instance and $10,000,000 in the aggregate;
(viii) no Lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(ix) no Lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(x) no Lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(xi) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries and any other instruments CFC whose assets are included as part of further assurance required pursuant hereto the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary and any other CFC owned by a U.S. Corporation and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or theretothe U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (Emcor Group Inc)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property ) of the Company and the Guarantors owned on the Issue Date U.S. Borrowers (other than Excluded PropertyEMCOR International Inc.) shall be pledged as Collateral pursuant to and the Collateral Documents on the Issue DateU.S. Subsidiaries which are Guarantors (other than EMCOR International Inc.) and, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit this Section 4.1, all capital stock of all of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons Guarantors (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted LiensEMCOR International Inc.), together with all instruments, securities, chattel paper and subject to no other Liens intangibles of the U.S. Borrowers (other than Permitted Liens), including EMCOR International Inc.) and the U.S. Subsidiaries which are Guarantors (iother than EMCOR International Inc.) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights all proceeds of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect: (x) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures, and (y) no Guarantor, the fair market value of whose assets aggregate less than $5,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with -30- or to be incorporated into the matter that is the subject of any Contract; (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company; and (i) other assets required by bonding companies to be collateral in connection with their issuance of payment and/or performance bonds, may in each case be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds, in each case to the extent such bonds are permitted hereunder;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only), (m) or (n);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated Foreign Subsidiary;
(iv) Liens granted shall be subject and may be subordinate to Liens permitted by Section 7.11 hereof;
(v) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on (A) notes receivable having a fair value of less than $5,000,000 in any instance and continuation statement recording and/or filing fees$40,000,000 in the aggregate, (B) bonds or notes pledged to the City of New York in lieu of retainage or (C) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $5,000,000 in any instance and $40,000,000 in the aggregate;
(vi) no Lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(vii) no Lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(viii) no Lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(ix) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries, EMCOR International Inc. and any other instruments CFC whose assets are included as part of further assurance required pursuant hereto the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary, EMCOR International Inc. and any other CFC owned by the Company or theretoa U.S. Subsidiary and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or the U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (EMCOR Group, Inc.)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which Documents) of the Company U.S. Borrowers and the GuarantorsU.S. Subsidiaries which are Guarantors and, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property of the Company and the Guarantors owned on the Issue Date (other than Excluded Property) shall be pledged as Collateral pursuant to the Collateral Documents on the Issue Date, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers and the U.S. Subsidiaries which are Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit of and all proceeds of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted Liens), and subject to no other Liens (other than Permitted Liens), including (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect; (i) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures and (ii) no Guarantor, the fair market value of whose assets aggregate less than $1,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; and (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company, may be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only) or (m);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated foreign subsidiary;
(iv) no Liens need be granted on real property unless and until the Required Lenders so require;
(v) Liens granted may be subject and subordinate to Liens permitted by Sections 7.11(a), (b), (c), (e), (g), (h), (j), (k), (n), and (o) hereof;
(vi) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on notes receivable having a fair value of less than $2,000,000 in any instance and continuation statement recording and/or $10,000,000 in the aggregate or on bonds or notes pledged to the City of New York in lieu of retainage;
(vii) Liens need not be perfected by possession or control (but may be perfected by the filing feesof a financing statement) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $1,000,000 in any instance and $5,000,000 in the aggregate;
(viii) no lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(ix) no lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(x) no lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(xi) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries and any other instruments Controlled Foreign Corporation (“CFC”) as such term is defined a Section 957 of further assurance required pursuant hereto the Code whose assets are included as part of the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary and any other CFC owned by a U.S. Corporation and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or theretothe U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (Emcor Group Inc)
The Collateral. Upon the Collateral Release Date, the Agent shall terminate and release all Liens securing the Obligations and Hedging Liability. Prior to the Collateral Release Date, the Obligations and Hedging Liability (ai) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, U.S. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, other personal property (as provided further described in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property ) of the Company and the Guarantors owned on the Issue Date U.S. Borrowers (other than Excluded PropertyEMCOR International Inc.) shall be pledged as Collateral pursuant to and the Collateral Documents on the Issue DateU.S. Subsidiaries which are Guarantors (other than EMCOR International Inc.) and, and perfected with the priority intended to be granted thereby, subject, in the case of the Post-Closing Collateral Documents, subject to the provisions of Section 11.05.
(b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit this Section 4.1, all capital stock of all of the Holders and the Trustee, in each case pursuant to the terms of the Collateral Documents, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holder, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance with their terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shall, and shall cause each of the Grantors to, at the Company’s sole cost and expense, take or cause to be taken such actions as may be required by the Collateral Documents, to perfect, maintain (with the priority required under the Collateral Documents), preserve and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons Guarantors (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted LiensEMCOR International Inc.), together with -27- all instruments, securities, chattel paper and subject to no other Liens intangibles of the U.S. Borrowers (other than Permitted Liens), including EMCOR International Inc.) and the U.S. Subsidiaries which are Guarantors (iother than EMCOR International Inc.) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights all proceeds of the Holders, the First Lien Notes Collateral Agent, and the Trustee under this Indenture and the Collateral Documents to all property comprising the Collateralforegoing, and (ii) the delivery of the certificates evidencing U.K. Borrowers shall be secured by valid and perfected first Liens on all inventory, accounts receivable, equipment and personal property (as further described in the securities pledged Collateral Documents) of the U.S. Borrowers, U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors, subject to the provisions of this Section 4.1, all capital stock of all Guarantors, together with all instruments, securities, chattel paper and intangibles of the U.S. Borrowers, the U.K. Borrowers, the U.S. Subsidiaries which are Guarantors and the U.K. Subsidiaries which are Guarantors and all proceeds of the foregoing; provided however that unless and until the Required Lenders otherwise elect: (x) the Borrowers and the Guarantors shall not be required to note the Agent’s Lien on any certificate of title issued for a vehicle or to perfect a Lien on fixtures, and (y) no Guarantor, the fair market value of whose assets aggregate less than $1,000,000 shall be required to grant Liens on its assets to the Agent, further provided that:
(i) Liens on (a) any contract (or modification thereof) (a “Contract”) to which any Guarantor is a party (“Contractor”), the performance of which is guaranteed by any bond, undertaking, instrument of guarantee or any continuation, extension, alteration, renewal or substitution thereof, executed by any bonding company of a Contractor; (b) any subcontract or purchase order and against any legal entity and its bonding company which has contracted with a Contractor to furnish labor, materials, equipment, and supplies in connection with any Contract; (c) monies, Contract balances, due or to become due any Contractor on any Contract, including all monies earned or unearned which are unpaid at the time of notification by a bonding company to the obligee of the bonding company’s rights under any Collateral Documentagreement of indemnity with a Contractor; (d) any actions, duly endorsed causes of action, claims or demands whatsoever which a Contractor may have or acquire against any party to a Contract or arising out of or in blank connection with any Contract, including but not limited to those against obligees and design professionals any bonding company or accompanied by undated stock powers bonding companies of any obligee; (e) any and all rights, title, interest in, or other instruments use of transfer executed any patent, copyright or trade secret which is or may be necessary for the completion of any bonded work; (f) all monies due or to become due to a Contractor on any policy of insurance relating to any claims arising out of the performance of any Contract or to premium refunds, including, but not limited to, builders risk, fire, employee dishonesty or workers’ compensation policies; (g) all supplies, tools, plants, material, inventory, and equipment (whether completely manufactured or not), wherever located, which have been or hereafter may be purchased, used, or acquired for use, entirely or partly, in blank. The Company shall connection with or to be incorporated into the matter that is the subject of any Contract; (h) all amounts that may be owing from time to time promptly pay all by a bonding company to a Contractor or any Guarantor in any capacity including, without limitation, any balance or share belonging to such Contractor or Guarantor or any deposit or other account with a bonding company; and (i) other assets required by bonding companies to be collateral in connection with their issuance of payment and/or performance bonds, may in each case be subject to prior Liens in favor of bonding companies to secure obligations in connection with such payment and performance bonds, in each case to the extent such bonds are permitted hereunder;
(ii) no Lien need be granted on any asset subject to a lien permitted by Section 7.11(e), (i), (l) (as to Liens on fixed assets only), (m) or (n);
(iii) no Lien need be granted on the capital stock of an Unrestricted Subsidiary or on the capital stock or assets of a corporation identified on Schedule 5.2 as a designated Foreign Subsidiary;
(iv) Liens granted shall be subject and may be subordinate to Liens permitted by Sections 7.11 hereof;
(v) Liens need not be perfected by possession or control (but may be perfected by the filing of a financing statement) on (A) notes receivable having a fair value of less than $2,000,000 in any instance and continuation statement recording and/or filing fees$10,000,000 in the aggregate, (B)bonds or notes pledged to the City of New York in lieu of retainage or (C) on equity securities (other than capital stock of Restricted Subsidiaries to the extent required hereby) having a fair value of less than $2,000,000 in any instance and $10,000,000 in the aggregate;
(vi) no Lien need be granted on any contract, license, permit or franchise, that validly prohibits the creation, attachment, or perfection of a security interest in favor of the Agent of a security interest in such contract, license, permit or franchise (or in any rights or property obtained by such Person under such contract, license, permit or franchise);
(vii) no Lien need be granted on any rights or property to the extent that any valid and enforceable law or regulation applicable to such rights or property prohibits the creation of a security interest therein;
(viii) no Lien need be granted on any rights or property to the extent that such rights or property secure purchase money financing therefor permitted by this Credit Agreement and the agreements providing such purchase money financing prohibit the creation of a further security interest therein; and
(ix) Liens on deposit accounts, securities accounts and commodity accounts maintained by the Borrowers and the Guarantors need not be perfected by entering into a control agreement or otherwise. The Borrowers agree that they will, and will cause the Guarantors to, from time to time at the request of the Agent or the Required Lenders execute and deliver such documents, security agreements, assignments, pledges, hypothecs or charges and recording do such acts and similar taxes relating things as the Agent or the Required Lenders may reasonably request in order to provide for or perfect such Liens on the Collateral. Notwithstanding anything to the Indenturecontrary contained herein or in any other Loan Document, the Collateral Documents and any amendments hereto or thereto owned by the U.K. Subsidiaries, EMCOR International Inc. and any other instruments CFC whose assets are included as part of further assurance required pursuant hereto the Collateral (including without limitation equity interests in other U.K. Subsidiaries) shall secure solely the indebtedness, liabilities and obligations of the U.K. Subsidiaries and any CFC hereunder and under the other Loan Documents and not the indebtedness, liabilities and obligations of the U.S. Borrowers and the -29- U.S. Subsidiaries hereunder and under the other Loan Documents. Notwithstanding the foregoing, the portion of the capital stock of each U.K. Subsidiary, EMCOR International Inc. and any other CFC owned by the Company or theretoa U.S. Subsidiary and constituting Collateral in excess of 65% of the total issued and outstanding capital stock of such Subsidiary (herein, the “Excess Stock Collateral”) shall secure only the indebtedness liabilities and obligations of U.K. Subsidiaries and/or any other CFC hereunder and under the other Loan Documents. In no event shall the Excess Stock Collateral secure the indebtedness, liabilities and obligations of the U.S. Borrowers or the U.S. Subsidiaries hereunder or under the other Loan Documents. Notwithstanding the foregoing, no Lien need be granted on the capital stock of a captive insurance company or captive surety company if the granting of such Lien would violate applicable law or require the consent of any applicable regulatory body.
Appears in 1 contract
Sources: Credit Agreement (Emcor Group Inc)
The Collateral. (a) The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Guarantees when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Guarantees and performance of all other obligations under this Indenture, including, the obligations of the Company set forth in Section 7.07 and Section 8.05 herein, and the Notes and the Guarantees and the Collateral Documents, Obligations shall be secured by valid and perfected first priority Liens on and security interests in the Notes Collateral and the ABL Collateral, in each case with the priority set forth in the ABL Intercreditor Agreement and subject to Permitted Liens, as provided in the Collateral Documents which the Company and the Guarantors, as the case may be, have entered into simultaneously with the execution of this Indenture and will be secured by all Collateral Documents hereafter delivered as required or permitted by this Indenture and the Collateral Documents. All property Property of the Company Borrower and the Guarantors owned on the Issue Date each Restricted Subsidiary (other than Excluded Property(x) shall be pledged as Collateral the Insurance Subsidiary or (y) any capital stock or equity interests of any SPV Subsidiary) described in, and pursuant to the Collateral Documents on terms of, the Issue Date, Company Security Agreement and perfected with the priority intended to be granted thereby, subject, Subsidiary Security Agreement in the case favor of the Post-Closing Collateral Documents, to the provisions of Section 11.05.
(b) The Company and the Guarantors hereby agree that the First Lien Notes Collateral Agent shall hold the Collateral in trust for the benefit of all of the Holders Administrative Agent and the Trustee, in each case pursuant to the terms of the Collateral DocumentsLenders. The Borrower covenants and agrees that it will, and the First Lien Notes Collateral Agent is hereby authorized to execute and deliver the Collateral Documents.
(c) Each Holderwill cause each of such Restricted Subsidiaries to, by its acceptance of any Notes and the Guarantees, consents and agrees to the terms of Section 11.09 and the Collateral Documents (including, the provisions providing for the possession, use, release and foreclosure of Collateral) as the same may be in effect or may be amended from time to time in accordance comply with their all terms and authorizes and directs the Trustee and the First Lien Notes Collateral Agent to perform its obligations and exercise its rights under this Indenture and the Collateral Documents in accordance therewith.
(d) The Trustee and conditions of each Holder, by accepting the Notes and the Guarantees, acknowledges that, as more fully set forth in the Collateral Documents, the Collateral as now or hereafter constituted shall be held for the benefit of all the Holders and the Trustee, and that the Lien of this Indenture and the Collateral Documents in respect of the Trustee and the Holders is subject to and qualified and limited in all respects by the Collateral Documents and actions that may be taken thereunder.
(e) The Company shallit will, and shall will cause each of the Grantors its Restricted Subsidiaries to, at any time and from time to time, at the Company’s sole cost request of the Administrative Agent or the Required Lenders, execute and expense, take deliver such instruments and documents and do such acts and things as the Administrative Agent or cause the Required Lenders may reasonably request in order to be taken such actions as may be required by provide for or protect or perfect the Lien of the Collateral DocumentsAgent in the Collateral. With respect to Collateral that consists of Master Collection Accounts (as defined in the Permitted Facility Intercreditor Agreement), Borrower, the SPV Subsidiaries and the other Grantors (as defined in the Security Agreement (Deposit Accounts)), pursuant to perfect, maintain the Security Agreement (with the priority required under Deposit Accounts) shall grant a security interest in such Master Collection Accounts to the Collateral DocumentsAgent (as defined in the Permitted Facility Intercreditor Agreement), preserve . The rights and protect the valid and enforceable, perfected (except as expressly provided herein or therein) security interests in and on all the Collateral granted by the Collateral Documents in favor remedies of the First Lien Notes Collateral Agent as security for the First Lien Notes Obligations, superior to and prior to the rights of all third Persons (other than as set forth in the ABL Intercreditor Agreement and other than to the extent permitted or not prohibited under this Indenture with respect to Permitted Liens), and subject to no other Liens (other than Permitted Liens), including (i) the filing of financing statements, continuation statements, collateral assignments and any instruments of further assurance, in such manner and in such places as may be required by law to preserve and protect fully the rights of the Holders, the First Lien Notes Collateral Agent, the Administrative Agent, each Permitted Facility Agent party thereto, and the Trustee any additional Permitted Facility Agents under this Indenture Agreement and the Collateral Documents to all property comprising the Collateral, and (ii) the delivery any of the certificates evidencing other Loan Documents shall be governed by the securities pledged under provisions of the Permitted Facility Intercreditor Agreement. To the extent that the provisions of the Permitted Facility Intercreditor Agreement conflict with the provisions of this Agreement or any Collateral Document, duly endorsed in blank or accompanied by undated stock powers or of the other instruments of transfer executed in blank. The Company shall from time to time promptly pay all financing and continuation statement recording and/or filing fees, charges and recording and similar taxes relating to the IndentureLoan Documents, the Collateral Documents and any amendments hereto or thereto and any other instruments provisions of further assurance required pursuant hereto or theretothe Permitted Facility Intercreditor Agreement shall control.
Appears in 1 contract