Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred. (b) Pledgor may pledge additional Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral. (c) Any delivery of Common Stock (or security entitlement in respect thereof) as Collateral to the Collateral Agent by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities Intermediary, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Collateral Agent, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting of such Common Stock to the Securities Account or (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities Intermediary, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities Account. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral. (d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “Collateral Event of Default” shall mean, at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock or (B) failure at any time of the Security Interests to constitute valid and perfected security interests in all of the Collateral, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.
Appears in 5 contracts
Samples: Pledge Agreement (Goad Douglass C), Pledge Agreement (American International Group Inc), Pledge Agreement (American International Group Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Shares as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Shares registered in the name of Pledgor, by delivery of certificates representing such Common Stock Shares to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance reasonably satisfactory to Banc of America Securities LLC (the “Custodian”), and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the “Collateral AgentAccount”) of Secured Party maintained at the Custodian, (B) in the case of Collateral consisting of uncertificated Common Stock Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock Shares instructing such issuer to register such Common Stock Shares in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock Shares in respect of which security entitlements are held by Pledgor through a securities intermediaryintermediary (including, without limitation, Secured Party), by the crediting of such Common StockShares, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities Intermediary, Custodian at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Custodian and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly use reasonable efforts to notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Event of Default or Termination Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred. For the avoidance of doubt, upon the settlement or termination of either Transaction A or Transaction B (as defined in the Confirmation), any portion of the Base Amount with respect to such Transaction not required to be delivered to Secured Party pursuant to the terms of the Confirmation shall be released and discharged from the Security Interests and delivered to Pledgor by Secured Party, all at the request and expense of Pledgor.
(f) On the Settlement Date for any Transaction, unless (i) Pledgor shall have otherwise effected the deliveries of the Contract Shares for such Settlement Date for such Transaction required by the Transaction Agreement by 10:00 A.M., New York City time, on such Settlement Date or shall have delivered the required Preliminary Cash Settlement Amount to Secured Party in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Date for such Transaction or (ii) the Collateral then held by or on behalf of Secured Party hereunder does not include a number of Free Shares at least equal to the number of Contract Shares for such Settlement Date, Secured Party shall deliver or cause to be delivered to itself, or to an affiliate of Secured Party designated by Secured Party, from the Collateral Account, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Contract Shares under the Transaction Agreement, a number of Free Shares then held by or on behalf of Secured Party hereunder equal to the number of Contract Shares for such Settlement Date or cash or Government Securities equal in value to the Cash Settlement Amount (as defined in the Confirmation). Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such Free Shares absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon (other than the Lien granted in Section 2), and
(ii) the amount of any and all reasonable out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Event of Default or Termination Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Pledgor may at any time, the occurrence so long as no Event of either Default has occurred and is continuing, substitute cash or Government Securities for all (but not less than all) of the following: Shares pledged hereunder on the terms set forth below:
(Ai) failure At least five Exchange Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, cash or Government Securities having a value (as determined by the Calculation Agent) equal to or greater than 150% of the Collateral to include, as Eligible Collateral, at least market value of the Maximum Deliverable Number of shares Shares on the date of Common Stock or such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such cash or Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior Lien; and
(iv) Pledgor shall make xxxx to market deliveries of additional cash or Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release cash or Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the cash or Government Securities pledged is at all times is equal Liento or greater than 150% of the market value of the Maximum Deliverable Number of Shares at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 3 contracts
Samples: Pledge Agreement (Ralcorp Holdings Inc /Mo), Pledge Agreement (Ralcorp Holdings Inc /Mo), Pledge Agreement (Ralcorp Holdings Inc /Mo)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Securxxxxs on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 3 contracts
Samples: Pledge Agreement (Mafco Holdings Inc), Pledge Agreement (Mafco Holdings Inc), Pledge Agreement (Mafco Holdings Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine in good faith and a commercially reasonable manner on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Shares as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Shares registered in the name of Pledgor, by delivery of certificates representing such Common Stock Shares to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Custodian, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the “Collateral AgentAccount”) of Pledgor maintained at the Custodian with account number [account no.], (B) in the case of Collateral consisting of uncertificated Common Stock Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock Shares instructing such issuer to register such Common Stock Shares in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock Shares in respect of which security entitlements are held by Pledgor through a securities intermediaryintermediary (including, without limitation, Secured Party), by the crediting of such Common StockShares, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities Intermediary, Custodian at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Custodian and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Custodian shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral. Until all Secured Obligations are satisfied in full (other than contingent indemnification obligations for which a claim has not been made), the Custodian shall comply at all times with entitlement orders and other instructions originated by Secured Party concerning the Collateral Account without further consent by Pledgor or any other Person.
(d) If on any Business Day the Collateral Agent Secured Party determines in good faith and a commercially reasonable manner that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines in good faith and a commercially reasonable manner that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall mean, at any time, the occurrence of either of the following: have occurred.
(Af) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock or [Reserved.]
(Bg) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Xxxxxxx’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Xxxxxxx agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 1% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) If by 12:00 noon, New York City time on the Final Settlement Date Pledgor has not otherwise effected delivery of the Number of Shares pursuant to the provisions set forth opposite the caption “Share Delivery” in the Confirmation and the Collateral then held under this Agreement by or on behalf of Secured Party includes (or would include in the absence of the Rehypothecation) a number of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions is (or would be) true and satisfied (or, at the absolute discretion of Secured Party, with respect to which such Representation and Agreement is not true or satisfied), at least equal to the excess of the Number of Shares over the number of Shares (if any) actually delivered by Pledgor pursuant to “Share Delivery” provisions of the Confirmation as of such time (such excess, the “Deficit Shares”), then the delivery required by the provisions set forth opposite the caption “Share Delivery” in the Confirmation shall be effected, in whole or in part, as the case may be, by (i) delivery from the Collateral Account to Secured Party or at its direction of a number of Shares equal to the Deficit Shares, in which case Secured Party (or its designee) shall hold such Collateral Shares absolutely free from any claim or right of any kind and, to the extent permitted by law, Pledgor hereby waives all right of redemption, stay or appraisal with respect thereto and/or (ii) if the Collateral has been Rehypothecated, by netting and setting off Secured Party’s obligation to return such number of Rehypothecated Collateral Shares to Pledgor against Pledgor’s delivery obligation in respect of such number of Shares pursuant to Section 2(d) of this Agreement, in which case Pledgor shall have no further claim with respect to such Rehypothecated Collateral Shares subject to no prior the netting and set-off under this Agreement, the Transaction Agreement or equal Lienotherwise.
(j) Secured Party is entitled to withhold any and all present or future taxes, levies, imposts, duties, charges, assessments or fees of any nature (including interest, penalties and additions thereto) that are imposed by any government or other taxing authority in respect thereof (“Taxes”) required to be withheld by applicable law, including but not limited to required withholding in the absence of proper tax documentation, on payments to, or assertion proceeds and payments realized from, the Collateral, in each case calculated at the rate no less than that which would apply if the Collateral were held directly by Pledgor. Pledgor shall promptly pay when due all Taxes that are imposed with respect to the Collateral, or Taxes that are imposed on income or distributions in respect of such the Collateral, including upon the Rehypothecation of the Collateral, and within three Business Days of demand, indemnify Secured Party (including, for the purposes of this paragraph (j), any of its affiliates) against, all Taxes that Secured Party may be required to pay with respect to the Collateral by reason of the security interest granted herein or otherwise payable in respect of this Agreement (including but not limited to any Taxes with respect to (w) any Taxes imposed under Section 897 or Section 1445 of the Code, (x) income earned or distribution with respect to the Collateral, (y) any proceeds or income from the sale, loan, exchange or other transfer of any Collateral or to free any Collateral from any Lien thereon or (z) payments of dividends, interest or other distributions into the Collateral Account under the pledge and Rehypothecation (including Taxes under Section 871(m) of the Code or other similar provision)). This obligation shall apply equally to any Taxes in respect of income recognized by Pledgor in writingrelation to a Rehypothecation of Shares. Any such Taxes shall not be an “Indemnifiable Tax” for purposes of Section 14 of the Agreement. Accordingly, for the avoidance of doubt, any proceeds or other amounts paid or credited to Pledgor in respect of the Collateral (including any Rehypothecated Collateral) shall be net of any applicable withholding Taxes. Pledgor shall deliver to the Secured Party such complete, correct, and valid applicable IRS Forms W-9 or W-8 (with all parts completed and with all applicable attachments, as the case may be). Xxxxxxx agrees to promptly deliver to Secured Party copies of any notices and other communications received by it in respect of the Collateral Shares. Notwithstanding anything to the contrary elsewhere in the Transaction Agreement or herein (but, for the avoidance of doubt, without impairment to Secured Party’s ability to make adjustments or receive any amounts owed to it under the Transaction Agreement with respect to any distributions on a gross basis), all payments and all deliveries of Collateral, or income or distributions in respect of Collateral or otherwise paid into the Collateral Account, pursuant to this Agreement or the Transaction Agreement shall be made and the value of any Collateral, or income or distributions in respect of Collateral or otherwise paid into the Collateral Account, shall be calculated net of any and all present or future Taxes in respect thereof.
Appears in 2 contracts
Samples: Pledge Agreement (Greenlight Capital Inc), Pledge Agreement (Greenlight Capital Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 2 contracts
Samples: Pledge Agreement (Mafco Holdings Inc), Pledge Agreement (Mafco Holdings Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer the General Partner of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities Account. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “Collateral Event of Default” shall mean, at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock Account or (Biv) failure at in any time of the Security Interests to constitute valid and perfected security interests in all of the Collateralcase, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.by
Appears in 2 contracts
Samples: Pledge Agreement (Zwan Bryan J), Pledge Agreement (Zwan Bryan J)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer the General Partner of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities Intermediary, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities Account. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “Collateral Event of Default” shall mean, at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock or (B) failure at any time of the Security Interests to constitute valid and perfected security interests in all of the Collateral, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.the
Appears in 2 contracts
Samples: Pledge Agreement (Zwan Bryan J), Pledge Agreement (Zwan Bryan J)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities Intermediary, Secured Party accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by Secured Party of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Secured Party or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by Secured Party of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Secured Party at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by Secured Party of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Stock Purchase Agreement or shall have delivered the Cash Settlement Amount to Secured Party (or an affiliate of Secured Party) in lieu of shares of Common Stock in accordance with Section 2.04 of the Stock Purchase Agreement on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself (or any of its affiliates designated by it) from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Stock Purchase Agreement, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Stock Purchase Agreement on the Maturity Date. A “Upon any such delivery, Secured Party (or such affiliate of Secured Party) shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Stock Purchase Agreement is terminated in part pursuant to Section 3.01 of the Stock Purchase Agreement, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Stock Purchase Agreement is to be terminated pursuant to Section 3.01 of the Stock Purchase Agreement; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party (or any affiliate of Secured Party) relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Stock Purchase Agreement during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party (or an affiliate of Secured Party designated by Secured Party), in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Securxxxxs on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 2 contracts
Samples: Pledge Agreement (Mafco Holdings Inc), Pledge Agreement (Mafco Holdings Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance reasonably satisfactory to Secured Party and dated the date of such delivery, delivery (A) identifying the additional items of Eligible Collateral being pledged and (B) certifying that repeating the representations, warranties and covenants set forth in Section 3 with respect to such additional items of additional Eligible Collateral the representations and warranties contained (as modified by any change in paragraphs (aPledgor’s Location as notified to Secured Party in accordance with Section 4(d) hereof or by any change in Pledgor’s status as notified to Secured Party in accordance with Section 4(d) hereof), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control, if applicable.
(c) Any delivery Delivery of Common Stock (or security entitlement in respect thereof) as Collateral to the Collateral Agent by Pledgor Initial Shares shall be effected (A) in by physical delivery to the case Secured Party of Collateral consisting of certificated Common Stock certificates evidencing the Initial Shares registered in the name of Greenlady or the Pledgor, by delivery of certificates representing such Common Stock to the Securities Intermediary, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Custodian and the crediting by Custodian of such securities to the Collateral AgentAccount; provided that, if any Initial Shares so delivered are registered in the name of Greenlady, Pledgor shall cause such Initial Shares to be reregistered in the name of Pledgor within five Business Days after the date hereof and certificates evidencing such reregistered Shares shall be delivered in accordance with clause (BA) below. Subject to the foregoing, any delivery by Pledgor of securities as Collateral shall be effected (A) in the case of Collateral consisting of uncertificated Common Stock certificated securities registered in the name of Pledgor, by transmission by Pledgor delivery of an instruction certificates representing such securities to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary or its nomineeSecured Party, accompanied by any required transfer tax stamps, and the issuer’s compliance in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with such instructions signatures appropriately guaranteed, all in form and substance satisfactory to Custodian and Secured Party and the crediting by Custodian of such Common Stock securities to the Securities Account or Collateral Account, (CB) in the case of Common Stock shares or other securities in respect of which security entitlements are held by Pledgor through a securities intermediaryintermediary (including, without limitation, Secured Party or Custodian), by the crediting of such Common Stockshares or other securities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary intermediary, including Custodian, or, at the option of the Collateral Agent and the Securities Intermediary, Custodian at another securities intermediary satisfactory to the Collateral Agent Custodian and the Securities Intermediary Secured Party and the crediting by Custodian of such Common Stock securities to the Securities AccountCollateral Account or (C) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary shall Secured Party or Custodian may examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible CollateralCollateral herein.
(d) Any delivery by Pledgor of Cash as Collateral shall be effected by the delivery of such Cash to the Collateral Account.
(e) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(f) If on any Business Day after the end of the Availability Period in respect of a Tranche or the termination of all Commitments applicable to such Tranche, Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral allocated to such Tranche provided that, after such release, no Collateral Event of Default” shall meanDefault would occur and, if applicable, Section 5(k) was complied with and provided further, such release does not create or increase a Margin Deficiency in respect of such Tranche.
(g) If on any Business Day after the payment in full of all amounts owed under the Credit Agreement and the permanent termination of all Commitments thereunder, Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral provided that, after such release, no Collateral Event of Default would occur and, if applicable, Section 5(k) was complied with.
(h) Subject to Existing Transfer Restrictions, Secured Party may at any time or from time to time, but only after the occurrence of either a Default Event that is continuing at such time or with the prior consent of Pledgor, cause any or all of the following: (A) failure Shares pledged hereunder not registered in the name of the Collateral Secured Party or its nominee to includebe transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, as Eligible Collateralor held through a securities intermediary, at least in the Maximum Deliverable Number name of shares Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of Common Stock any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or Secured Party’s nominee.
(Bi) failure at Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
i. the amount of any time taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute free any of the Collateral from any Lien thereon, and
ii. the amount of any and all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in connection with (A) the enforcement of this Pledge Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral or (C) the exercise by Secured Party of any of the rights conferred upon it hereunder. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 1% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Pledge Agreement.
(j) Pledgor hereby acknowledges that during such time as any Collateral is held by Secured Party pursuant to the terms of this Pledge Agreement, Pledgor will not receive periodic account statements with respect to the value thereof.
(k) Unless a Default Event shall have occurred and is continuing, Pledgor shall be entitled, upon not less than two Business Days’ prior written notice to Secured Party, to withdraw all but not less than all of the Shares from the lien created herein upon (x) delivering to Secured Party Substitute Collateral having a market value at least equal to 105% of the aggregate amount of the Secured Obligations then outstanding, on the date of such delivery, and (y) taking such other actions as Secured Party may reasonably require to create for the benefit of Secured Party a valid and perfected security interests interest in all such Substitute Collateral, a first lien thereon and, if applicable, Control of Secured Party with respect thereto. The “Substitute Collateral” shall consist of (i) Treasury Obligations, (ii) cash or (iii) such other securities as Secured Party may approve. Pledgor shall make each delivery of Substitute Collateral to Secured Party in a manner prescribed by Section 5(c) or 5(d) hereof. Pledgor shall make deliveries of additional Substitute Collateral on a daily basis as necessary so that the market value of the CollateralSubstitute Collateral pledged is at least equal to 105% of the aggregate amount of the Secured Obligations then outstanding, subject determined daily. Provided that no Default Event has occurred and is continuing, if at the close of business on any Business Day the aggregate market value of the Substitute Collateral pledged hereunder exceeds 108% of the aggregate amount of the Secured Obligations then outstanding, Secured Party shall upon written notice by Pledgor release Substitute Collateral from the lien created herein and return them to no prior or equal Lien, or assertion Pledgor to the extent that the aggregate market value of such Substitute Collateral exceeds 108% of the aggregate amount of the Secured Obligations then outstanding. All calculations of the market value of Substitute Collateral shall be made in good faith by Pledgor in writingSecured Party on a “xxxx-to-market” basis.
Appears in 1 contract
Samples: Pledge Agreement (Directv)
Administration of the Collateral and Valuation of the Securities. (ai) The Collateral Agent Seller shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge any and all pay-in-kind dividends actually received by Seller as additional Eligible Collateral hereunder at any timetime by delivery of the same pursuant to Paragraph (d)(ii) of this Section 3. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor Seller shall deliver to the Collateral Agent CSI a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and certificate, dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs Paragraphs (aviii), (bix), (cx), (d) and (exii) of Section 3 4(b) are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral.
(cii) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent CSI by Pledgor Seller shall be effected (A) in the case of Collateral consisting of certificated Common Stock securities registered in the name of PledgorSeller, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to CSI, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the “Collateral AgentAccount”) of CSI maintained by the Custodian, (B) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, Seller by transmission by Pledgor Counterparty or Side Fund, as the case may be, of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor Counterparty or Side Fund through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryCSI, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary CSI and the crediting by the Custodian of such Common Stock securities to the Securities Account. Upon Collateral Account or (D) in any case, by complying with such alternative delivery of any such Pledged Item under this Agreement, the Securities Intermediary instructions as CSI shall examine such Pledged Item and any certificates delivered pursuant provide to Section 8(b) or otherwise pursuant to the terms hereof Seller in connection therewith to determine that they comply as to form with the requirements for Eligible Collateralwriting.
(diii) If on any Business Day the Collateral Agent CSI determines that no Default Event or failure by Seller to meet any of Seller’s obligations under Paragraph (c) or (d) hereof has occurred and is continuing, Seller may obtain the release from the Security Interests of any Collateral upon delivery to CSI of a written notice from Seller indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “Collateral Event of Default” shall mean, at any time, the occurrence of either of the following: .
(iv) Unless (A) failure Counterparty has elected Cash Settlement under this Confirmation, (B) by 10:00 A.M., New York City Time, on the Settlement Date, Seller shall have otherwise delivered the Number of Shares to be Delivered or (C) the Collateral does not include Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the 2002 Definitions are true and satisfied (or, at the absolute discretion of CSI, Shares with respect to which such Representation and Agreement are not true or satisfied), then CSI shall deliver or cause to be delivered to itself from the Collateral Account, in whole or partial, as the case may be, satisfaction of Seller’s obligations to deliver Shares to CSI, a number of Shares then held in the Collateral Account, not to exceed the Number of Shares to be Delivered. Upon any such delivery, CSI shall hold such Shares absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Seller).
(v) CSI may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Counterparty or Side Fund or a nominee of either to includebe transferred of record into the name of the Custodian, as Eligible CollateralCSI or its nominee. Seller shall promptly give to CSI copies of any notices or other communications received by Counterparty or Side Fund with respect to Collateral that is registered, at least or held through a securities intermediary, in the Maximum Deliverable Number name of shares Counterparty or Side Fund or a nominee of Common Stock either and CSI shall promptly give to Counterparty copies of any notices and communications received by CSI with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, CSI or its nominee.
(Bvi) failure at Seller agrees that Seller shall forthwith upon demand pay to CSI:
(A) the amount of any time taxes that CSI or the Custodian may have been required to pay by reason of the Security Interests (other than taxes arising from the status of either CSI or the Custodian) or to constitute valid free any of the Collateral from any Lien thereon; and
(B) the amount of any and perfected security interests all costs and expenses, including the fees and disbursements of counsel and of any other experts, that CSI or the Custodian may incur in all connection with (1) the enforcement of this Section 3, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (2) the collection, sale or other disposition of any of the Collateral, subject (3) the exercise by CSI of any of the rights conferred upon it hereunder or (4) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien5% plus the prime rate as published from time to time in The Wall Street Journal, or assertion of such by Pledgor in writingEastern Edition.
Appears in 1 contract
Samples: Confirmation (Rite Aid Corp)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may, notwithstanding Section 9-207 of the UCC, sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "REHYPOTHECATE"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "SHARE COLLATERAL") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make xxxx to market deliveries of additional Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge hereunder additional Collateral hereunder acceptable to Secured Party at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A B hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (aSection 3(a), (b3(b), (c), (d3(c) and (e3(d) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c6(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which the Collateral Agent will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities Intermediarycertificated securities, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blankblank (including any related documentation required by the transfer agent for such securities in connection with effecting or registering transfer), with signatures appropriately guaranteed, all in form and substance satisfactory to the Collateral Agentissuer of and the transfer agent for such securities, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Collateral Agent or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting of such Common Stock to the Securities Account or (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Collateral Agent at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAgent, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountAgent. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Collateral Agent shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b6(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day the Collateral Agent determines that no Event of Default or failure by Pledgor to meet any of Pledgor's obligations under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to the Collateral Agent of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Settlement Date for each Tranche, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(a) of the Stock Purchase Agreement for such Tranche or shall have delivered the Cash Settlement Amount for such Tranche to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Stock Purchase Agreement on the Settlement Date for such Tranche or (ii) the shares of Common Stock then held by the Collateral Agent hereunder are not Free Stock, the Collateral Agent shall deliver (and Pledgor hereby irrevocably instructs the Collateral Agent to deliver, in complete or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to an affiliate of Secured Party designated by Secured Party on the Settlement Date for such Tranche pursuant to the Stock Purchase Agreement) to an affiliate of Secured Party designated by Secured Party shares of Common Stock that are Free Stock then held by the Collateral Agent hereunder representing the number of shares of Common Stock required to be delivered with respect to such Tranche under the Stock Purchase Agreement on the Settlement Date for such Tranche. Upon any such delivery, such affiliate of Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) The Collateral Agent may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Collateral Agent or Pledgor's nominee. Pledgor shall promptly give to the Collateral Agent copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and the Collateral Agent shall promptly give to Pledgor copies of notices and communications received by the Collateral Agent, in accordance with the Collateral Agent's customary procedures, with respect to Collateral that is registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or Secured Party may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon, and
(ii) the amount of any and all out-of-pocket expenses, including the fees and disbursements of counsel and of any other experts, that the Collateral Agent or Secured Party may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by the Collateral Agent of any of the rights conferred upon it hereunder or (D) any Event of Default” . Any such amount not paid on demand shall mean, bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 2% plus the rate announced from time to time by JPMorgan Chase Bank as its prime rate.
(i) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to includethe date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Securxxxxs on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each New York Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d), (e) and (eg) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien Lien upon, such additional Eligible Collateral.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Notes as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Notes registered in the name of Pledgor, by delivery of certificates representing such Common Stock Notes to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance reasonably satisfactory to the Collateral Agent, Secured Party and Banc of America Securities LLC (the “Custodian”) or (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgorany case, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance complying with such alternative delivery instructions and the crediting of such Common Stock as Secured Party shall provide to the Securities Account or (C) Pledgor in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities Intermediary, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities Accountwriting. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral. Pledgor acknowledges that Secured Party may cause the Collateral to be transferred to the Custodian, as securities intermediary, for credit to a securities account maintained with the Custodian. Pledgor further acknowledges and agrees that Secured Party shall be the sole entitlement holder with respect to any such securities account.
(d) If on any New York Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly use reasonable efforts to notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any New York Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of DefaultDefault shall have occurred.
(f) If Physical Settlement is to be effectuated pursuant to the “Automatic Physical Settlement” shall mean, at any time, the occurrence of either provisions of the following: (AConfirmation, Secured Party may deliver or cause to be delivered to itself, or to an affiliate of Secured Party designated by Secured Party as provided in Section 3(i) failure of the Collateral to includeConfirmation, from the Collateral, in whole or partial satisfaction, as Eligible Collateralthe case may be, at least of Pledgor’s obligations to deliver the Maximum Deliverable Number of shares Notes to be Delivered for such Settlement Date under the Transaction Agreement, Notes with a Principal Amount not more than the Number of Common Stock Notes to be Delivered for such Settlement Date, against payment by Secured Party as required by the Confirmation for such Settlement Date. Upon any such delivery and Secured Party’s performance of its obligations under the Transaction Agreement, Secured Party or such affiliate of Secured Party shall hold such Notes absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Notes pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party, Custodian or any nominee. Pledgor shall at its own expense take any action requested by Secured Party to effect, and shall cooperate fully in effecting, such registration in an expeditious manner. Pledgor shall, as soon as practicable, give to Secured Party copies of any notices or other communications received by Pledgor with respect to Notes pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall, as soon as practicable, give to Pledgor copies of any notices and communications received by Secured Party with respect to Notes pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests (other than any fee of the Custodian for holding the Collateral hereunder) or to constitute valid free any of the Collateral from any Lien thereon (other than the Lien granted in Section 2) and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien2% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Pledgor hereby acknowledges that during such time as the Collateral is held by Secured Party pursuant to the terms of this Agreement, Pledgor will not receive periodic account statements with respect to the value thereof.
(j) Secured Party shall not, and shall not permit the Custodian to, pledge, encumber, hypothecate, transfer, dispose of, or assertion otherwise grant any third party an interest in, the Notes held as Collateral; provided that Secured Party may reregister the securities in its name or in the name of such the Custodian and may transfer the Notes to the Custodian for credit to the securities account referred to in Section 5(c) hereof; and provided, further, that the foregoing restrictions shall not apply upon the exercise of remedies by Pledgor in writingSecured Party under Section 7.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may, sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries ox xxditional Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Transaction Confirmation relating to the Transaction in respect of which such Eligible Collateral is being pledged, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 and paragraph (d) of Section 2 of such Transaction Confirmation are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (or security entitlement entitlements in respect thereof) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by Secured Party of such securities to a securities account (as defined in Section 8-501 of the UCC) (the “Collateral AgentAccount”) of Secured Party maintained at Banc of America Securities LLC, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary Secured Party or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by Secured Party of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Secured Party at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by Secured Party of such Common Stock securities to the Securities AccountCollateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Event of Default or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On each Settlement Date for each Transaction under the Master Stock Purchase Agreement, at any time, unless (i) Pledgor shall have otherwise effected the occurrence of either deliveries required by Section 3.02(b) of the following: (A) failure of Master Stock Purchase Agreement or shall have delivered the Collateral Cash Settlement Amount to include, as Eligible Collateral, at least the Maximum Deliverable Number Secured Party in lieu of shares of Common Stock (or security entitlements in respect thereof) in accordance with Section 3.03 of the Master Stock Purchase Agreement on each Settlement Date in respect of such Transaction or (Bii) failure the shares of Common Stock (or security entitlements in respect thereof) then held by or on behalf of Secured Party hereunder in respect of such Transaction are not Free Shares, Secured Party shall deliver or cause to be delivered to itself or an affiliate of Secured Party designated by Secured Party from the Collateral Account, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver shares of such Common Stock (or security entitlements in respect thereof) to itself or an affiliate of Secured Party designated by Secured Party on such Settlement Date pursuant to the Master Stock Purchase Agreement) shares of such Common Stock (or security entitlements in respect thereof) then held by or on behalf of Secured Party hereunder in respect of such Transaction representing the number of shares of such Common Stock (or security entitlements in respect thereof) required to be delivered under the Master Stock Purchase Agreement on such Settlement Date. Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such shares of such Common Stock (or security entitlements in respect thereof) absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Common Stock pledged hereunder (or in respect of which security entitlements are pledged hereunder) registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pxxxxxx agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Event of Default. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Without limiting the rights and obligations of the parties under this Pledge Agreement, Secured Party shall, notwithstanding Section 9-207 of the UCC, upon the consent of Pledgor, have the right to sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, “rehypothecate”) any Collateral it holds in connection with a Confirmation, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor, provided that Secured Party will, in each case in a manner consistent with industry practice for loans of equity securities, (i) replace any rehypothecated Collateral (with the same Collateral or identical substitute Collateral) upon three Business Days’ notice from Pledgor, (ii) if not already replaced, replace such Collateral immediately prior to the time at which such Collateral ceases to be subject to no the Security Interests and (iii) prior or equal Lien, or assertion to replacement of such Collateral, pay Pledgor amounts equivalent to dividends paid or other distributions made on such Collateral, whereupon the amount so paid or the assets so delivered shall be proceeds of the Collateral and shall be subject to Section 6. All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. For purposes of determining the occurrence of a Collateral Event of Default, the rehypothecation of any Collateral pledged hereunder shall not affect the status of such Collateral as Collateral or Eligible Collateral hereunder.
(j) Pledgor in writinghereby acknowledges that during such time as the Collateral is held by Secured Party pursuant to the terms of this Agreement, Pledgor will not receive periodic account statements with respect to the value thereof.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer the General Partner of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities Account. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “Collateral Event of Default” shall mean, at any time, the occurrence of either of the following: (A) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock Account or (Biv) failure at in any time of the Security Interests to constitute valid and perfected security interests in all of the Collateralcase, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.by
Appears in 1 contract
Samples: Pledge Agreement (Zwan Bryan J)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time while an Acceleration Event shall have occurred and is continuing, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "SHARE COLLATERAL") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make xxxx to market deliveries of additional Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries ox xxditional Government Securities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Shares as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Shares registered in the name of Pledgor, by delivery of certificates representing such Common Stock Shares to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Custodian, and the crediting by the Custodian of such securities to the Collateral AgentAccount, (B) in the case of Collateral consisting of uncertificated Common Stock Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock Shares instructing such issuer to register such Common Stock Shares in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock Shares in respect of which security entitlements are held by Pledgor through a securities intermediarythe Custodian, by the crediting of such Common StockShares, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAccount or (D) in any case, at another securities intermediary satisfactory by complying with such alternative delivery instructions as Secured Party shall provide to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountPledgor in writing. Upon delivery of any such Pledged Item under clause 5(c)(A) of this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred. Secured Party shall instruct Custodian to transfer to Pledgor any Collateral so released.
(f) On each Settlement Date or Cash Settlement Payment Date, as the case may be, unless (i) by 10:00 A.M., New York City time on the Settlement Date, Pledgor shall have otherwise effected the delivery of the Number of Shares to be Delivered for such Settlement Date or delivered the Preliminary Forward Cash Settlement Amount in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Payment Date or (ii) the Collateral then held by or on behalf of Secured Party hereunder does not include a number of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at any timethe absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) at least equal to the occurrence Number of either Shares to be Delivered for such Settlement Date, Secured Party shall deliver or cause to be delivered to itself, or to an affiliate of the following: (A) failure of Secured Party designated by Secured Party, from the Collateral to includeAccount, in whole or partial, as Eligible Collateralthe case may be, at least satisfaction of Pledgor’s obligations to deliver the Maximum Deliverable Number of shares Shares to be Delivered for such Settlement Date under the Transaction Agreement, a number of Common Stock Shares then held by or on behalf of Secured Party hereunder equal to the Number of Shares to be Delivered for such Settlement Date. Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such Shares absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) As between Pledgor and Secured Party, Secured Party agrees that it will not deliver any instructions (including entitlement orders) to the Custodian with respect to the Collateral Account or equal Lienthe Collateral credited thereto under the Collateral Account Control Agreement unless it is permitted to do so under this Agreement or the Transaction Agreement. Secured Party shall reimburse Pledgor, or assertion in a manner and at times agreed between Pledgor and Secured Party, for any fees and expenses of such the Custodian paid by Pledgor in writingPledgor.
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (or security entitlement entitlements in respect thereof) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by Secured Party of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained at Banc of America Securities LLC, who will hold the Collateral, including such securities, as custodian for Secured Party, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary Secured Party or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by Secured Party of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Secured Party at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by Secured Party of such Common Stock securities to the Securities AccountCollateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Event of Default or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) If Secured Party exercises its right to exchange any Note pursuant to Section 7 of the Note Purchase Agreement, unless Pledgor shall have otherwise effected the deliveries required by Section 7 of the Note Purchase Agreement, Secured Party shall have the right, at any timeits election, the occurrence of either of the following: (A) failure of to deliver or cause to be delivered to itself from the Collateral to includeAccount, in whole or partial, as Eligible Collateralthe case may be, at least satisfaction of Pledgor's obligations to deliver shares of such Common Stock on the Maximum Deliverable Number Exchange Date pursuant to the Note Purchase Agreement, shares of such Common Stock (or security entitlements in respect thereof) then held by or on behalf of Secured Party hereunder representing the number of shares of such Common Stock required to be delivered under the Note Purchase Agreement on the Exchange Date. Upon any such delivery, Secured Party shall hold such shares of such Common Stock (or security entitlements in respect thereof) absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Common Stock pledged hereunder (or in respect of which security entitlements are pledged hereunder) registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Xxxxxxx agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Event of Default. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien2% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Pledgor hereby acknowledges that during such time as the Collateral is held by Secured Party pursuant to the terms of this Agreement, Pledgor will not receive periodic account statements with respect to the value thereof.
(j) Except as set forth in Section 8(b), unless an Event of Default shall have occurred and be continuing, Secured Party shall not sell, assign, transfer, or assertion otherwise dispose of, lend, borrow against, pledge, grant any option or create any Lien (other than the Security Interests) with respect to the Collateral, or enter into any agreement or arrangement intended to effect any of such by Pledgor in writingthe foregoing.
Appears in 1 contract
Samples: Pledge Agreement (Fairfax Financial Holdings LTD/ Can)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Sxxxxities on a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) After the Prepayment Date, Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Shares as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Shares registered in the name of Pledgor, by delivery of certificates representing such Common Stock Shares to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Custodian, and the crediting by the Custodian of such securities to the Collateral AgentAccount of Secured Party maintained at the Custodian, (B) in the case of Collateral consisting of uncertificated Common Stock Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock Shares instructing such issuer to register such Common Stock Shares in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock Shares in respect of which security entitlements are held by Pledgor through a securities intermediarythe Custodian, by the crediting of such Common StockShares, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAccount or (D) in any case, at another securities intermediary satisfactory by complying with such alternative delivery instructions as Secured Party shall provide to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountPledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On each Settlement Date or Cash Settlement Payment Date, as the case may be, unless (i) by 10:00 A.M., New York City time on the Settlement Date, Pledgor shall have otherwise effected the delivery of the Number of Shares to be Delivered for such Settlement Date or delivered the Preliminary Forward Cash Settlement Amount in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Payment Date or (ii) the Collateral then held by or on behalf of Secured Party hereunder does not include a number of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreements) are true and satisfied (or, at any timethe absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) at least equal to the occurrence Number of either Shares to be Delivered for such Settlement Date, Secured Party shall deliver or cause to be delivered to itself, or to an affiliate of the following: (A) failure of Secured Party designated by Secured Party, from the Collateral to includeAccount, in whole or partial, as Eligible Collateralthe case may be, at least satisfaction of Pledgor’s obligations to deliver the Maximum Deliverable Number of shares Shares to be Delivered for such Settlement Date under the Transaction Agreement, a number of Common Stock Shares then held by or on behalf of Secured Party hereunder equal to the Number of Shares to be Delivered for such Settlement Date. Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such Shares absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien5% plus the prime rate as published in The Wall Street Journal, or assertion Eastern Edition in effect from time to time during the period from the date hereof to the date of such by Pledgor in writingthe termination of this Agreement.
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge hereunder additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (aSection 3(a), (b3(b), (c), (d3(c) and (e3(d) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c6(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which the Collateral Agent will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCollateral Agent, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blankblank (including any related documentation required by the transfer agent for such securities in connection with effecting or registering transfer), with signatures appropriately guaranteed, all in form and substance reasonably satisfactory to the Collateral Agent, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Collateral Agent or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting of such Common Stock to the Securities Account or (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Collateral Agent at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAgent, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountAgent. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Collateral Agent shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b6(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day the Collateral Agent determines that no Event of Default or failure by Pledgor to meet any of Pledgor's obligations under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to the Collateral Agent of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On the Settlement Date for each Tranche, at any time, unless (i) Pledgor shall have otherwise effected the occurrence of either deliveries required by Section 2.03(a) of the following: (A) failure of Stock Purchase Agreement for such Tranche or shall have delivered the Collateral Cash Settlement Amount for such Tranche to include, as Eligible Collateral, at least the Maximum Deliverable Number Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Stock Purchase Agreement on the Settlement Date for such Tranche or (Bii) failure the shares of Common Stock then held by the Collateral Agent hereunder are not Free Stock, the Collateral Agent shall deliver (and Pledgor hereby irrevocably instructs the Collateral Agent to deliver, in complete or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to an affiliate of Secured Party designated by Secured Party on the Settlement Date for such Tranche pursuant to the Stock Purchase Agreement) to an affiliate of Secured Party designated by Secured Party shares of Common Stock that are Free Stock then held by the Collateral Agent hereunder representing the number of shares of Common Stock required to be delivered with respect to such Tranche under the Stock Purchase Agreement on the Settlement Date for such Tranche. Upon any such delivery, such affiliate of Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) The Collateral Agent may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Collateral Agent or Collateral Agent's nominee. Pledgor shall promptly give to the Collateral Agent copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and the Collateral Agent shall promptly give to Pledgor copies of notices and communications received by the Collateral Agent with respect to Collateral that is registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee; PROVIDED, however, that (i) the Collateral Agent shall only be required to deliver such notices or other communications as have actually been received by it in respect of the Collateral and (ii) the Collateral Agent shall only be required to make such deliveries as quickly as reasonably practicable after its receipt of such notices or other communications; PROVIDED FURTHER that proxies, powers of attorney, consents, ratifications and waivers in respect of any of the Collateral that is registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee shall be subject to Section 7(c) hereof and shall not be subject to this Section 6(g). Except as specifically set forth herein, the Collateral Agent shall have no further obligation to ascertain, or to notify Pledgor of, the occurrence of any events or actions concerning Collateral that is registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee and the Collateral Agent shall not be deemed to assume any such further obligation as a result of its establishment of any internal procedures with respect to any securities in its possession.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all reasonable and documented out-of- pocket expenses actually incurred, including the reasonable and documented fees and disbursements of outside counsel and of any other outside experts, that the Collateral Agent or Secured Party may incur subsequent to the occurrence of an Event of Default in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by the Collateral Agent of any of the rights conferred upon it hereunder or (D) any Event of Default. Any such amount not paid within ten business days of written demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien, or assertion of such 2% plus the rate announced from time to time by Pledgor in writingJPMorgan Chase Bank as its prime rate.
Appears in 1 contract
Samples: Pledge Agreement (Soros George)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral that is, upon delivery to Secured Party, Eligible Collateral hereunder at any time. Concurrently with the delivery of any such additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and substance satisfactory to Secured Party and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Confirmation, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have (in the case of Collateral consisting of investment property) Control, subject in all cases to the Permitted Lien.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) Shares as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock Shares registered in the name of Pledgor, by delivery of certificates representing such Common Stock Shares to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Custodian, and the crediting by the Custodian of such securities to the Collateral AgentAccount of Secured Party maintained at the Custodian, (B) in the case of Collateral consisting of uncertificated Common Stock Shares registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock Shares instructing such issuer to register such Common Stock Shares in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock Shares in respect of which security entitlements are held by Pledgor through a securities intermediarythe Custodian, by the crediting of such Common StockShares, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAccount or (D) in any case, at another securities intermediary satisfactory by complying with such alternative delivery instructions as Secured Party shall provide to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountPledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On each Settlement Date or Cash Settlement Payment Date, as the case may be, unless (i) by 10:00 A.M., New York City time on the Settlement Date, Pledgor shall have otherwise effected the delivery of the Number of Shares to be Delivered for such Settlement Date or delivered the Preliminary Forward Cash Settlement Amount in lieu thereof by 5:00 P.M., New York City time, on the Preliminary Cash Settlement Payment Date or (ii) the Collateral then held by or on behalf of Secured Party hereunder does not include a number of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at any timethe absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) at least equal to the occurrence Number of either Shares to be Delivered for such Settlement Date, Secured Party shall deliver or cause to be delivered to itself, or to an affiliate of the following: (A) failure of Secured Party designated by Secured Party, from the Collateral to includeAccount, in whole or partial, as Eligible Collateralthe case may be, at least satisfaction of Pledgor’s obligations to deliver the Maximum Deliverable Number of shares Shares to be Delivered for such Settlement Date under the Transaction Agreement, a number of Common Stock Shares then held by or on behalf of Secured Party hereunder equal to the Number of Shares to be Delivered for such Settlement Date. Upon any such delivery, Secured Party or such affiliate of Secured Party shall hold such Shares absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Shares pledged hereunder registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor’s nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Shares pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.,
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c6(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) as Collateral to the Collateral Agent by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities IntermediaryCollateral Agent, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Collateral Agent, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary Collateral Agent or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting of such Common Stock to the Securities Account or (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Collateral Agent at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAgent, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountAgent. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Collateral Agent shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b6(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Parent and Pledgor of such determination by telephone call to Parent and to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day the Collateral Agent determines that no Acceleration Event or failure by Pledgor to meet any of its obligations under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to the Collateral Agent of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On the Maturity Date, at any time, unless (i) Parent or Pledgor shall have otherwise effected the occurrence of either deliveries required by Section 2.03(b) of the following: (A) failure of Securities Contract or shall have delivered the Collateral Cash Settlement Amount to include, as Eligible Collateral, at least the Maximum Deliverable Number Secured Party in lieu of shares of Common Stock (or security entitlements in respect thereof) in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (Bii) failure the Common Stock (or security entitlements in respect thereof) then held by the Collateral Agent hereunder is not Free Stock, the Collateral Agent shall deliver (and Pledgor hereby irrevocably instructs the Collateral Agent to deliver, in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock (or security entitlements in respect thereof) to Secured Party on the Maturity Date pursuant to the Securities Contract) to Secured Party shares of Common Stock (or security entitlements in respect thereof) then held by it hereunder representing the number of shares of Common Stock (or security entitlements in respect thereof) required to be delivered under the Securities Contract on the Maturity Date. Upon any such delivery, Secured Party shall hold such shares of Common Stock (or security entitlements in respect thereof) absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) The Collateral Agent may at any time or from time to time, in its sole discretion, cause any or all of the Common Stock pledged hereunder (or in respect of which security entitlements are pledged hereunder) registered in the name of Pledgor or its nominee to be transferred of record into the name of the Collateral Agent or its nominee. Pledgor shall promptly give to the Collateral Agent copies of any notices or other communications received by Pledgor with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Parent or its nominee, or Pledgor or its nominee and the Collateral Agent shall promptly give to Pledgor copies of any notices and communications received by the Collateral Agent with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee.
(h) Pledgor agrees that either Parent or Pledgor shall forthwith upon demand pay to the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or Secured Party may have been required to pay by reason of the Security Interests or to constitute valid and perfected security interests in all free any of the CollateralCollateral from any Lien thereon, subject to no prior or equal Lien, or assertion of such by Pledgor in writing.and
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer the General Partner of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such reasonable alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer the General Partner of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from the General Partner of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, the occurrence of either in its sole discretion, cause any or all of the following: Common Stock pledged hereunder registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Common Stock pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Common Stock pledged hereunder registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon, and
(ii) the amount of any and all reasonable costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) failure the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral to includeand the validity, as Eligible perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may, notwithstanding Section 9-207 of the UCC, sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "REHYPOTHECATE"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will replace any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already replaced, on the Maturity Date or any Optional Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to replace only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the Maximum Deliverable Number number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (Bii) failure a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to replace in accordance with the proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder. All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if any of the Eligible Collateral pledged hereunder is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to replace such Collateral pursuant to the proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions or (4) otherwise) (a "REHYPOTHECATION UNAVAILABILITY"), the Calculation Agent shall adjust one or more of the Security Interests Base Amount, the Exchange Rate, the Threshold Price, the Issue Price, the Maturity Price, the Cash Settlement Amount, any Closing Price and any other variable relevant to constitute valid and perfected security interests in all the exercise, settlement or payment terms hereof or of the CollateralSecurities Contract, subject as appropriate to no prior make Secured Party whole for Secured Party's cost relating to the borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract (whether such borrowing is effected by Secured Party or equal Lienby a counterparty to a transaction entered into by Secured Party to hedge Secured Party's exposure to the Securities Contract), or assertion as determined by the Calculation Agent. For purposes of determining the occurrence of a Collateral Event of Default, the rehypothecation of any Collateral pledged hereunder shall not affect the status of such by Pledgor in writingCollateral as Collateral or Eligible Collateral hereunder.
Appears in 1 contract
Samples: Pledge Agreement (Zwan Bryan J)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Calculation Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (or security entitlement entitlements in respect thereof) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities IntermediarySecured Party, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the Collateral Agentcrediting by Secured Party of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "COLLATERAL ACCOUNT") of Secured Party maintained at Banc of America Securities LLC, who will hold the Collateral, including such securities, as custodian for Secured Party, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary Secured Party or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by Secured Party of such Common Stock securities to the Securities Account or Collateral Account, (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Secured Party at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by Secured Party of such Common Stock securities to the Securities AccountCollateral Account or (D) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Event of Default or failure by Pledgor to meet any of its obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) If Secured Party exercises its right to exchange any Note pursuant to Section 7 of the Note Purchase Agreement, unless Pledgor shall have otherwise effected the deliveries required by Section 7 of the Note Purchase Agreement, Secured Party shall have the right, at any timeits election, the occurrence of either of the following: (A) failure of to deliver or cause to be delivered to itself from the Collateral to includeAccount, in whole or partial, as Eligible Collateralthe case may be, at least satisfaction of Pledgor's obligations to deliver shares of such Common Stock on the Maximum Deliverable Number Exchange Date pursuant to the Note Purchase Agreement, shares of such Common Stock (or security entitlements in respect thereof) then held by or on behalf of Secured Party hereunder representing the number of shares of such Common Stock required to be delivered under the Note Purchase Agreement on the Exchange Date. Upon any such delivery, Secured Party shall hold such shares of such Common Stock (or security entitlements in respect thereof) absolutely and free from any claim or right whatsoever (Bincluding, without limitation, any claim or right of Pledgor).
(g) failure Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Common Stock pledged hereunder (or in respect of which security entitlements are pledged hereunder) registered in the name of Pledgor or its nominee to be transferred of record into the name of Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Event of Default. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior or equal Lien2% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Pledgor hereby acknowledges that during such time as the Collateral is held by Secured Party pursuant to the terms of this Agreement, Pledgor will not receive periodic account statements with respect to the value thereof.
(j) Except as set forth in Section 8(b), unless an Event of Default shall have occurred and be continuing, Secured Party shall not sell, assign, transfer, or assertion otherwise dispose of, lend, borrow against, pledge, grant any option or create any Lien (other than the Security Interests) with respect to the Collateral, or enter into any agreement or arrangement intended to effect any of such by Pledgor in writingthe foregoing.
Appears in 1 contract
Samples: Pledge Agreement (Fairfax Financial Holdings LTD/ Can)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged pledged, (B) identifying the Transaction Confirmation relating to the Transaction in respect of which such Eligible Collateral is being pledged, and (BC) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 and paragraph (c) of Section 2 of such Transaction Confirmation are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c6(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral.
(c) Any delivery of Common Stock (or security entitlement in respect thereof) as Collateral to the Collateral Agent by Pledgor shall be effected (A) in the case of Collateral consisting of certificated Common Stock registered in the name of Pledgor, by delivery of certificates representing such Common Stock to the Securities IntermediaryCollateral Agent, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to the Collateral Agent, (B) in the case of Collateral consisting of uncertificated Common Stock registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock instructing such issuer to register such Common Stock in the name of the Securities Intermediary Collateral Agent or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting of such Common Stock to the Securities Account or (C) in the case of Common Stock in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stock, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Collateral Agent at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediaryAgent, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary and the crediting of such Common Stock to the Securities AccountAgent. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Collateral Agent shall examine such Pledged Item and any certificates delivered pursuant to Section 8(b6(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent determines that a Collateral Event of Default shall have occurred, the Collateral Agent shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day the Collateral Agent determines that no Event of Default or failure by Pledgor to meet any of its obligations under Sections 5 or 6 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to the Collateral Agent of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) On each Settlement Date for each Transaction under the Master Stock Purchase Agreement, at any time, unless (i) Seller shall have otherwise effected the occurrence deliveries required by Section 3.02(b) of either 5 26 the Master Stock Purchase Agreement on each Settlement Date in respect of such Transaction or (ii) the following: (A) failure of the Collateral to include, as Eligible Collateral, at least the Maximum Deliverable Number of shares of Common Stock (or security entitlements in respect thereof) then held by the Collateral Agent hereunder in respect of such Transaction are not Free Shares, the Collateral Agent shall deliver (Band Pledgor hereby irrevocably instructs the Collateral Agent to deliver, in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of such Common Stock (or security entitlements in respect thereof) failure to an affiliate of Secured Party designated by Secured Party on such Settlement Date pursuant to the Master Stock Purchase Agreement) to an affiliate of Secured Party designated by Secured Party shares of such Common Stock (or security entitlements in respect thereof) then held by it hereunder in respect of such Transaction representing the number of shares of such Common Stock (or security entitlements in respect thereof) required to be delivered under the Master Stock Purchase Agreement on such Settlement Date. Upon any such delivery, such affiliate of Secured Party shall hold such shares of such Common Stock (or security entitlements in respect thereof) absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) The Collateral Agent may at any time or from time to time, in its sole discretion, cause any or all of the Common Stock pledged hereunder (or in respect of which security entitlements are pledged hereunder) registered in the name of Pledgor or its nominee to be transferred of record into the name of the Collateral Agent or its nominee. Pledgor shall promptly give to the Collateral Agent copies of any notices or other communications received by Pledgor with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of Pledgor or its nominee and the Collateral Agent shall promptly give to Pledgor copies of any notices and communications received by the Collateral Agent with respect to Common Stock (or security entitlements in respect thereof) pledged hereunder registered, or held through a securities intermediary, in the name of the Collateral Agent or its nominee.
(h) Pledgor agrees that it shall forthwith upon demand pay to the Collateral Agent:
(i) the amount of any taxes that the Collateral Agent or Secured Party may have been required to pay by reason of the Security Interests or to constitute valid free any of the Collateral from any Lien thereon, and
(ii) the amount of any and perfected security interests all out-of-pocket expenses, including the reasonable fees and disbursements of counsel and of any other experts, that the Collateral Agent or Secured Party may incur in all connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, subject (C) the exercise by the Collateral Agent of any of the rights conferred upon it hereunder or (D) any Event of Default. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to no prior 5% plus the prime rate as published in The Wall Street Journal, Eastern Edition in effect from time to time during the period from the date hereof to the date of the termination of this Agreement.
(i) Without limiting the rights and obligations of the parties under this Agreement, the Collateral Agent agrees that, so long as an Event of Default has not occurred, it shall not sell, lend, pledge, rehypothecate, assign or equal Lien, or assertion invest in its business any of such by Pledgor in writingthe Collateral it holds.
Appears in 1 contract
Samples: Master Stock Purchase Agreement (Advanced Fibre Communications Inc)
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any time. Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and dated the date of such delivery, (Ai) identifying the additional items of Eligible Collateral being pledged and (Bii) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (ed) of Section 3 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c5(c) and any other actions necessary to create for the benefit of the Collateral Agent Secured Party a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral, as to which Secured Party will have Control.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the UCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the UCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities AccountCollateral Account or (iv) in any case, by complying with such alternative delivery instructions as Secured Party shall provide to Pledgor in writing. Upon delivery of any such Pledged Item under this Agreement, the Securities Intermediary Secured Party shall examine (or cause the Custodian to examine) such Pledged Item and any certificates delivered pursuant to Section 8(b5(b) or otherwise pursuant to the terms hereof in connection therewith to determine that they comply as to form with the requirements for Eligible Collateral.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call.
(e) If on any Business Day Secured Party determines that no Acceleration Event or failure by Pledgor to meet any of Pledgor's obligations under Sections 4 or 5 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default shall have occurred.
(f) On the Maturity Date, unless (i) Pledgor shall have otherwise effected the deliveries required by Section 2.03(b) of the Securities Contract or shall have delivered the Cash Settlement Amount to Secured Party in lieu of shares of Common Stock in accordance with Section 2.04 of the Securities Contract on the Maturity Date or (ii) the Common Stock then held by or on behalf of Secured Party hereunder is not Free Stock, Secured Party shall deliver or cause to be delivered to itself from the Collateral Account in whole or partial, as the case may be, satisfaction of Pledgor's obligations to deliver shares of Common Stock to Secured Party on the Maturity Date pursuant to the Securities Contract, shares of Common Stock then held by or on behalf of it hereunder representing the number of shares of Common Stock required to be delivered under the Securities Contract on the Maturity Date. A “Upon any such delivery, Secured Party shall hold such shares of Common Stock absolutely and free from any claim or right whatsoever (including, without limitation, any claim or right of Pledgor).
(g) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(h) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (A) the enforcement of this Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (B) the collection, sale or other disposition of any of the Collateral, (C) the exercise by Secured Party of any of the rights conferred upon it hereunder or (D) any Acceleration Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(i) Without limiting the rights and obligations of the parties under this Agreement, upon the consent of Pledgor (which consent need not be in writing), Secured Party may sell, lend, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business (collectively, "rehypothecate"), any Collateral, free from any claim or right of any nature whatsoever of Pledgor, including any equity or right of redemption by Pledgor; provided that Secured Party will return any rehypothecated Collateral (with the same Collateral or identical substitute Collateral)
(A) upon five Business Days' notice from Pledgor or (B) if not already returned, on the Maturity Date or on any Optional Termination Date or any Reorganization Termination Date; provided further that in the case of any Optional Termination Date on which the Securities Contract is terminated in part pursuant to Section 3.01 of the Securities Contract, Secured Party will be obligated to return only an amount of rehypothecated Collateral sufficient to ensure that on such date, the Collateral Account will contain a number of shares of Common Stock at least equal to the number of shares of Common Stock with respect to which the Securities Contract is to be terminated pursuant to Section 3.01 of the Securities Contract; provided further that in the case of any Reorganization Termination Date relating to any Reorganization Event in which the consideration received by holders of Common Stock does not consist solely of Non-Stock Consideration, Secured Party will be obligated to return only Non-Stock Consideration in an amount and of the type that a holder of a number of shares of Common Stock equal to the number of shares of Common Stock rehypothecated by Secured Party immediately prior to such Reorganization Termination Date would have been entitled to receive in such Reorganization Event. If at any time at which any shares of Common Stock constituting Collateral have been rehypothecated pursuant to this Section 5(i) there shall occur an event of a type that would, had Secured Party borrowed such shares of Common Stock from Pledgor on terms customary for loans of equity securities (as determined by the Calculation Agent), require either (i) an adjustment to the number of shares of Common Stock or a change in the type of securities or other property that Secured Party would be required to deliver to Pledgor to repay such stock loan or (ii) a payment or delivery by Secured Party to Pledgor in respect of dividends paid or distributions made on such shares of Common Stock, then, in the case of clause (i), except as provided in the third proviso to the immediately preceding sentence, such adjustment or change shall be applied to the number of shares of Common Stock that Secured Party is required to return upon notice from Pledgor in accordance with the first proviso to the immediately preceding sentence and, in the case of clause (ii), Secured Party shall make such payment or delivery to Pledgor, whereupon the amount so paid or the assets so delivered shall become Collateral hereunder (except that to the extent any such payment is made in respect of an Ordinary Cash Dividend, it shall be returned to Pledgor, it being understood that Pledgor is entitled to Ordinary Cash Dividends pursuant to Section 6(a) hereof). All determinations related to the immediately preceding sentence shall be made by the Calculation Agent. Notwithstanding the foregoing, if Eligible Collateral consisting of a number of shares of Common Stock equal to the Maximum Deliverable Number is unavailable for rehypothecation by Secured Party at any time ((1) as a result of Pledgor's withholding Pledgor's consent to rehypothecation of such Collateral, (2) as a result of Pledgor's causing Secured Party to return such Collateral pursuant to the first proviso to the first sentence in this Section 5(i), (3) as a result of any Transfer Restrictions, (4) as a result of Pledgor's substitution of Government Securities for Share Collateral pursuant to Section 5(j) or (5) otherwise), (a "Rehypothecation Unavailability"), Pledgor shall be obligated to reimburse Secured Party in the manner set forth below for any costs ("Borrow Costs") incurred by Secured Party relating to Secured Party's borrowing of shares of Common Stock in connection with hedging Secured Party's exposure to the Securities Contract during the period such Rehypothecation Unavailability exists, the aggregate amount of any such Borrow Costs to be determined by the Calculation Agent. Prior to the close of business on the Business Day (the "Reimbursement Notice Date") immediately preceding the first Business Day of each month (each such Business Day, a "Reimbursement Payment Date") that begins during the Reimbursement Period for such Rehypothecation Unavailability, the Calculation Agent shall deliver a notice to Pledgor specifying the aggregate amount of Borrow Costs incurred (the "Reimbursement Amount") during the period beginning on the Reimbursement Payment Date immediately preceding such Reimbursement Payment Date (or if there is no preceding Reimbursement Payment Date, beginning on the date such Rehypothecation Unavailability occurred) and ending on the Reimbursement Notice Date for such Reimbursement Payment Date. On such Reimbursement Payment Date, Pledgor shall make a cash payment to Secured Party, by wire transfer of immediately available funds to an account designated by Secured Party, in an amount equal to the aggregate amount of Borrow Costs specified in such notice. For purposes of determining the occurrence of a Collateral Event of Default” , the rehypothecation of any Collateral pledged hereunder shall meannot affect the status of such Collateral as Collateral or Eligible Collateral hereunder. This Section 5
(i) is intended to be an agreement that satisfies the requirements of Section 1058 of the Internal Revenue Code of 1986, as amended, and the regulations (including proposed regulations) promulgated thereunder, and Secured Party and Pledgor agree to treat this Section 5(i) as such an agreement for all federal income tax purposes.
(j) Pledgor may at any time, the occurrence of either of the following: so long as no Acceleration Event has occurred and is continuing, substitute Government Securities for all (Abut not less than all) failure of the Collateral consisting of Common Stock then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least fifteen Business Days prior to the date of any such substitution, Pledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Government Securities having a value (as Eligible Collateral, determined by the Calculation Agent) at least equal to 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock or on the date of such delivery;
(Biii) failure at any time Pledgor shall take all such other actions as Secured Party may reasonably require to create for the benefit of the Security Interests to constitute Secured Party a valid and perfected security interests interest in all such Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior or Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Government Securitixx xn a daily basis, and upon the request of Pledgor, Secured Party shall release Government Securities previously pledged, so that the value (as determined by the Calculation Agent) of the Government Securities pledged is at all times at least equal Liento 150% of the Market Value of the Maximum Deliverable Number of shares of Common Stock at such time, or assertion of such by Pledgor in writingeach case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
Appears in 1 contract
Administration of the Collateral and Valuation of the Securities. (a) The Collateral Agent Secured Party shall determine on each Business Day whether a Collateral Event of Default shall have occurred.
(b) Pledgor may pledge additional Eligible Collateral hereunder at any timetime by delivery of the same pursuant to Section 4(c). Concurrently with the delivery of any additional Eligible Collateral, Pledgor shall deliver to the Collateral Agent Secured Party a certificate of an Authorized Officer of Pledgor substantially in the form of Exhibit A hereto and Pledgor, dated the date of such delivery, (A) identifying the additional items of Eligible Collateral being pledged and (B) certifying that with respect to such items of additional Eligible Collateral the representations and warranties contained in paragraphs (a), (b), (c), (d) and (e) of Section 3 9 are true and correct with respect to such Eligible Collateral on and as of the date thereof. Pledgor hereby covenants and agrees to take all actions required under Section 8(c) and any other actions necessary to create for the benefit of the Collateral Agent a valid, first priority, perfected security interest in, and a first lien upon, such additional Eligible Collateral.
(c) Any delivery of Common Stock (any securities or security entitlement entitlements (each as defined in respect thereofSection 8-102 of the NYUCC) as Collateral to the Collateral Agent Secured Party by Pledgor shall be effected effected, (Ai) in the case of Collateral consisting of certificated Common Stock securities registered in the name of Pledgor, by delivery of certificates representing such Common Stock securities to the Securities IntermediaryCustodian, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party, and the crediting by the Custodian of such securities to a securities account (as defined in Section 8-501 of the NYUCC) (the "Collateral AgentAccount") of Secured Party maintained by the Custodian, (Bii) in the case of Collateral consisting of uncertificated Common Stock securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such Common Stock securities instructing such issuer to register such Common Stock securities in the name of the Securities Intermediary Custodian or its nominee, accompanied by any required transfer tax stamps, and the issuer’s 's compliance with such instructions and the crediting by the Custodian of such Common Stock securities to the Securities Account or Collateral Account, (Ciii) in the case of Common Stock securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such Common Stocksecurities, accompanied by any required transfer tax stamps, to a securities account of the Securities Intermediary Custodian at such securities intermediary or, at the option of the Collateral Agent and the Securities IntermediarySecured Party, at another securities intermediary satisfactory to the Collateral Agent and the Securities Intermediary Secured Party and the crediting by the Custodian of such Common Stock securities to the Securities Account. Upon Collateral Account or (iv) in any case, by complying with such alternative delivery of any such Pledged Item under this Agreement, the Securities Intermediary instructions as Secured Party shall examine such Pledged Item and any certificates delivered pursuant provide to Section 8(b) or otherwise pursuant to the terms hereof Pledgor in connection therewith to determine that they comply as to form with the requirements for Eligible Collateralwriting.
(d) If on any Business Day the Collateral Agent Secured Party determines that a Collateral Event of Default shall have occurred, the Collateral Agent Secured Party shall promptly notify Pledgor of such determination by telephone call to an Authorized Officer of Pledgor followed by a written confirmation of such call. A “.
(e) If on any Business Day Secured Party determines that no Default Event or failure by Pledgor to meet any of Pledgor's obligations under Section 3 or 4 hereof has occurred and is continuing, Pledgor may obtain the release from the Security Interests of any Collateral and delivery of such Collateral to Pledgor upon delivery to Secured Party of a written notice from an Authorized Officer of Pledgor indicating the items of Collateral to be released so long as, after such release, no Collateral Event of Default” Default shall meanhave occurred.
(f) Secured Party may at any time or from time to time, in its sole discretion, cause any or all of the Collateral that is registered in the name of Pledgor or Pledgor's nominee to be transferred of record into the name of the Custodian, Secured Party or its nominee. Pledgor shall promptly give to Secured Party copies of any notices or other communications received by Pledgor with respect to Collateral that is registered, or held through a securities intermediary, in the name of Pledgor or Pledgor's nominee and Secured Party shall promptly give to Pledgor copies of any notices and communications received by Secured Party with respect to Collateral that is registered, or held through a securities intermediary, in the name of Custodian, Secured Party or its nominee.
(g) Pledgor agrees that Pledgor shall forthwith upon demand pay to Secured Party:
(i) the amount of any taxes that Secured Party or the Custodian may have been required to pay by reason of the Security Interests or to free any of the Collateral from any Lien thereon; and
(ii) the amount of any and all costs and expenses, including the fees and disbursements of counsel and of any other experts, that Secured Party or the Custodian may incur in connection with (1) the enforcement of this Pledge Agreement, including such expenses as are incurred to preserve the value of the Collateral and the validity, perfection, rank and value of the Security Interests, (2) the collection, sale or other disposition of any of the Collateral, (3) the exercise by Secured Party of any of the rights conferred upon it hereunder or (4) any Default Event. Any such amount not paid on demand shall bear interest (computed on the basis of a year of 360 days and payable for the actual number of days elapsed) at a rate per annum equal to 5% plus the prime rate as published from time to time in The Wall Street Journal, Eastern Edition.
(h) Pledgor may at any time, the occurrence of either of the following: so long as no Default Event has occurred and is continuing, substitute Cash and/or Government Securities for all (Abut not less than all) failure of the Collateral consisting of Shares then held in or credited to includethe Collateral Account (the "Share Collateral") on the terms set forth below:
(i) At least five Business Days prior to the date of any such substitution, as Eligible CollateralPledgor shall notify Secured Party in writing that Pledgor intends to effect such substitution;
(ii) Pledgor shall deliver to Secured Party, in a manner reasonably acceptable to Secured Party, Cash and/or Government Securities having a value at least the Maximum Deliverable Number of shares of Common Stock or (B) failure at any time equal to 150% of the Security Interests market value of the Share Collateral on the date of such delivery (as determined by the Calculation Agent);
(iii) Pledgor shall take all such other actions as Secured Party may reasonably require to constitute create for the benefit of Secured Party a valid and perfected security interests interest in all such Cash and/or Government Securities, in respect of the Collateralwhich Secured Party will have Control, subject to no prior Lien; and
(iv) Pledgor shall make mark to market deliveries of additional Cash and/or Governmxxx Securities on a daily basis, and Secured Party shall release Cash and/or Government Securities previously pledged upon the request of Pledgor, so that the value of the Cash and/or Government Securities pledged is at all times at least equal to 150% of the market value of the Share Collateral for such Transaction that would otherwise have been pledged hereunder at such time (as determined by the Calculation Agent), in each case, pursuant to terms mutually acceptable to Secured Party and Pledgor.
(i) For the avoidance of doubt, Secured Party shall have no right to sell, lend, pledge, rehypothecate, assign, invest, use, commingle or equal Lienotherwise dispose of, or assertion of such by Pledgor otherwise use in writingits business any Collateral.
Appears in 1 contract
Samples: Master Pledge Agreement (Canadian Imperial Bank of Commerce /Can/)
