Designation of Collateral. The Company may at any time designate as Revolver First Priority Collateral, Term Loan First Priority Collateral or Shared Collateral hereunder any Portfolio Investment (including Cash and Cash Equivalents) satisfying the terms and conditions of the provisions of Section 9.02(c) of the Credit Agreements, such designation to be effected by delivery to the Collateral Agent of a notice substantially in the form of Exhibit A or in such other form approved by the Collateral Agent (a “Collateral Designation Notice”), which notice shall identify such Portfolio Investment and be accompanied by a certificate of any Responsible Officer delivered to the Collateral Agent:
(a) certifying that such designation is permitted (or not prohibited) by the Secured Instruments, and that after giving effect to such designation (including a designation for purposes of curing a Default or an Event of Default), no Default or Event of Default shall have occurred and be continuing,
(b) in the case of any re-designation of a Pledged Revolver Portfolio Investment as Term Loan First Priority Collateral or Shared Collateral, certifying that the “Borrowing Base” (as defined in the Revolving Credit Agreement) equals at least 150% of the Covered Debt Amount (as defined in the Revolving Credit Agreement) after giving effect to such designation, and
(c) in the case of any re-designation of a Pledged Term Loan Portfolio Investment as Revolver First Priority Collateral or Shared Collateral, certifying that the “Borrowing Base” (as defined in the Term Loan Credit Agreement) equals at least 150% 37 of the Covered Debt Amount (as defined in the Term Loan Credit Agreement) after giving effect to such designation. Notwithstanding the foregoing, the Company’s investment in American Capital, LLC shall at all times constitute Shared Collateral. Following any re-designation of a Pledged Revolver Portfolio Investment or Pledged Term Loan Portfolio Investment as Collateral of a different type in accordance with this Section 8.2, such Portfolio Investment shall be deemed released from the Revolver First Priority Collateral or Term Loan First Priority Collateral, as applicable, and shall thereafter constitute Collateral of the type so designated.
Designation of Collateral. The term "Collateral" when used herein shall include (i) marketable securities owned by Mr. Faulkner or the Pledgors having a Fair Market Value (as hereinafxxx xxxxxxx) as of the date of this Agreement equal to no less than the principal amount outstanding under the Note and (ii) any shares of Common Stock and any other securities of the Secured Party now owned or hereafter acquired by Mr. Faulkner or the Pledgors, or in which Mr. Faulkner or the Pledgoxx xxx xxx xr hereafter acquires any benefxxxxx xxxxxxst, together with any securities, instruments or distributions of any kind issuable, issued or received upon conversion of, in respect of, or in exchange or in substitution for any such Collateral, including, but not limited to, those arising from a stock dividend, stock split, reclassification, reorganization, merger, consolidation, sale of assets or other exchange of securities, or any dividends, cash, property or other distributions of any kind upon, with respect to, or in consequence of the ownership of, the Collateral. In the event subscriptions, warrants, options or other rights are issued in connection with any Collateral, such subscriptions, warrants, options and rights shall be deemed to be part of the Collateral. The term "Collateral" shall also include
Designation of Collateral. The term "Collateral" when used herein shall include (i) marketable securities owned by the Obligor having a Fair Market Value (as hereinafter defined) as of the date of this Agreement equal to no less than the principal amount outstanding under the Note and (ii) any shares of Common Stock and any other securities of the Secured Party now owned or hereafter acquired by the Obligor, or in which the Obligor now has or hereafter acquires any beneficial interest, together with any securities, instruments or distributions of any kind issuable, issued or received upon conversion of, in respect of, or in exchange or in substitution for any such Collateral, including, but not limited to, those arising from a stock dividend, stock split, reclassification, reorganization, merger, consolidation, sale of assets or other exchange of securities, or any dividends, cash, property or other distributions of any kind upon, with respect to, or in consequence of the ownership of, the Collateral. In the event subscriptions, warrants, options or other rights are issued in connection with any Collateral, such subscriptions, warrants, options and rights shall be deemed to be part of the Collateral. The term "Collateral" shall also include any additional Collateral delivered by the Obligor to the Secured Party pursuant to Section 1.3 hereof. As used in this Agreement, the term "Fair Market Value" shall mean, as of any date: (i) with respect to the marketable securities, the closing price of such marketable securities as reported on the principal national securities exchange(s) on which such marketable securities are traded on such date, or if no price for such marketable securities are reported on such date, the closing price of such securities on the last preceding date on which there were reported prices for such securities; or (ii) with respect to marketable securities that are not listed or admitted to unlisted trading privileges on a national securities exchange, the closing price of such securities as reported by The Nasdaq Stock Market on such date, or if no price for such marketable securities are reported on such date, the closing price of such securities on the last preceding date on which there were reported prices for such securities; or (iii) with respect to any assets that are not marketable securities traded on a national securities exchange or on The Nasdaq National Stock Market, then the Fair Market Value shall be determined by the Secured Party, acting in its disc...
Designation of Collateral. Custodian 112121
Designation of Collateral. The Company may at any time and from time to time after the Effective Date designate any Portfolio Investment as Credit Facility First Priority Collateral, Secured Notes First Priority Collateral or Shared Collateral hereunder , such designation to be effected by delivery to the Collateral Agent of a notice substantially in the form of Exhibit B or in such other form approved by the Collateral Agent (a “Collateral Designation Notice”), which notice shall identify such Portfolio Investment and be accompanied by a certificate of any Responsible Officer delivered to the Collateral Agent, certifying that:
(a) such designation is permitted (or not prohibited) by the Secured Instruments;
(b) after giving effect to such designation (including a designation for purposes of curing a Default or an Event of Default), no Default or Event of Default shall have occurred and be continuing;
(c) in the case of any designation of a Portfolio Investment included in Credit Facility First Priority Collateral as Secured Notes First Priority Collateral or Shared Collateral, after giving effect to such designation either (x) the Borrowing Base is equal to at least 100% of the Covered Debt Amount and such designation will not result in a reduction in the excess of the Borrowing Base over the Covered Debt Amount, or (y) the Borrowing Base is equal to at least 110% of the Covered Debt Amount; and
(d) in the case of any designation of a Portfolio Investment included in Secured Notes First Priority Collateral as Credit Facility First Priority Collateral or Shared Collateral, after giving effect to such designation, the Company is in Pro Forma Covenant Compliance. Following any designation of a Portfolio Investment as Collateral of a different type in accordance with this Section 8.2, such Portfolio Investment shall be deemed released from its previous designation and shall thereafter constitute Collateral of the type so designated.
